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DDA Factsheet 10: Education Pre-16


We have a series of factsheets on various aspects of the Disability Discrimination Act (DDA) 1995, all of which are available in alternative formats from the RNIB Helpline by calling 0303 123 9999 or email [email protected].

This factsheet deals with the education provisions of the DDA. Schools may also be covered by the service provider parts of the DDA where they are providing a service to the public – for example, renting out a hall, or holding a fete. Please see factsheets 5 and 6 for details of this.


This factsheet applies only to England and Wales, as there are separate Special Educational Needs (SEN) provisions for Scotland. Please see factsheet 11 for Scotland.


Introduction

Since September 2002, all schools have had new legal duties under the Disability Discrimination Act (DDA) 1995 (as amended by the Special Educational Needs and Disability Act 2001) not to discriminate against disabled pupils and disabled prospective pupils.


These new duties interact and combine with the Special Educational Needs Framework and new planning duties for schools and Local Education Authorities (LEAs).


The Equality & Human Rights Commission (formerly Disability Rights Commission) has produced a Code of Practice, which explains the law. Although it is not the law itself, tribunals have to take it into account where it is relevant. The Code is available to download from the Equality & Human Rights Commission website (www.equalityhumanrights.com ) or to buy from The Stationery Office.

Who has rights under the Act?

The Act gives rights to disabled people – those with a “physical or mental impairment which has a substantial and long term adverse effect on the ability to carry out normal day to day activities”.


From 14 April 2003, if you have been certified as blind or partially sighted by a consultant ophthalmologist, or if you are registered as blind or partially sighted with a local authority, you will automatically be regarded as disabled for the purposes of the act.


Most blind and partially sighted people are likely to be “disabled” within the meaning of the Act.


Please see Factsheet 3 on definition of disability for further information.


Who has duties under this part of the Act?

All schools are covered, including independent and publicly funded schools, mainstream and special schools, nursery, primary and secondary schools, non-maintained special schools and pupil referral units. The ‘responsible body’ for a school is ultimately liable and as such is responsible for the actions of all employees and any agents.


Responsible Bodies

Type of School

Responsible Body

Maintained school

The governing body, in general

Pupil referral unit

The local education authority

Maintained nursery school

The local education authority

Independent school

The proprietor

Special school that is not maintained by a local education authority

The proprietor


How does the DDA affect Special Educational Needs?


The SEN framework in England and Wales

The duties in the Disability Discrimination Act are designed to dovetail with existing duties under the Special Educational Needs (SEN) framework. The main purpose of the SEN duties is to make provision to meet the special educational needs of individual children.


The duties in the SEN framework are based on the definition of SEN in s 312 of the Education Act 1996. This says that: A child has special educational needs if he or she has a learning difficulty which calls for special educational provision.

A child has a learning difficulty if he or she:


Special education provision means:

Provision is made for special education under the School Action and School Action Plus stages and through a Statement of special educational need (SEN).


It is important to note that the DDA duties on schools do not require them to provide “auxiliary aids and services”, for example, a teaching assistant, or to make any changes to the physical features of their buildings – such as installing handrails. It is assumed that these will be dealt with through the SEN framework and through the planning duties (which place schools under obligations to plan for changes to the curriculum and the school’s physical environment).


Finding out about a pupil’s disability

Schools are advised to take reasonable steps to find out whether pupils or prospective pupils have a disability in order to ensure that disabled pupils are not discriminated against.


However, where a school could not have reasonably known that a pupil or prospective pupil has a disability, then they may use this ‘lack of knowledge’ in their defence if a case of discrimination is brought against them.




Disabled pupils and their parents do have a right to require confidentiality. It is acknowledged that where this is asked for, it may limit what a school is able to do to ensure that the particular pupil does not experience discrimination or disadvantage.


What are the duties?

It is unlawful under the DDA for schools to discriminate in:



Admissions

Responsible bodies must not discriminate against a disabled person:


Education and associated services

It is unlawful for the responsible body to discriminate against a disabled pupil in the education or associated services provided for, or offered to, pupils. These terms are not defined, but the Code of Practice (Pre-16) which has been produced by the Equality & Human Rights Commission gives some examples of the sorts of things which are likely to fall within this term. The Code is not the law itself, but it has to be taken into account by courts and tribunals where relevant. “Education or associated services” will essentially cover all aspects of school life, such as:



Exclusions

It is unlawful for a responsible body to discriminate against a disabled pupil by excluding him or her from the school, either temporarily or permanently.

What is meant by discrimination?

Discrimination against a disabled pupil or prospective pupil can occur in two ways.


Disability related less favourable treatment

Discrimination can occur when a responsible body treats a disabled pupil or prospective pupil less favourably, for a reason relating to his or her disability, than someone to whom that reason does not apply, without justification


For example: A primary school tells a partially sighted child that she cannot go on a school trip because she is visually impaired. This is less favourable treatment for a reason relating to the child’s disability and may be unlawful.


Can less favourable treatment be justified?

In some cases, the school may be able to justify treating a disabled pupil ‘less favourably” if it can show that it was for a reason which is both material (specifically related to the case) and substantial (more than minor or trivial) to the particular case.


For example: A pupil, who is registered blind, is on a trip with her school to an outward-bound centre. It is arranged for the school children to go on a 12 mile hike over difficult terrain, but having carried out a risk assessment, the teachers decide that the disabled pupil will be unable to go on the hike for health and safety reasons. The responsible body may be able to justify the less favourable treatment in this case for a material and substantial reason (assuming that no reasonable adjustments could be made which would have removed the health and safety issues).


Less favourable treatment can also be justified if it is the result of a permitted form of selection.


Failing to make a ‘reasonable adjustment’

The second way in which discrimination can take place is where a responsible body fails to take reasonable steps to ensure that disabled pupils or prospective pupils are not placed at a substantial disadvantage in comparison with their non-disabled peers without justification.


For example: a secondary school fails to make arrangements for extra time to be allowed for visually impaired pupils who are taking public exams.


A secondary school hosts a special unit for pupils with a visual impairment. The school is already appropriately equipped for enlarging text and providing Braille versions of documents for pupils who use Braille. When the pupils are working in the unit all information is provided at the beginning of the lesson by the school in the range of formats they need. When they are working in mainstream classes in the school, the school regularly fails to provide information in time to be transferred into different formats for the lesson. Not providing the information in time leaves the disabled pupils unable to refer to written information during the lesson, whilst their non-disabled peers can. This is likely to constitute a substantial disadvantage in comparison with non-disabled pupils. The failure to take reasonable steps to prevent this disadvantage is likely to be unlawful.


The duty is an anticipatory duty, which means that schools should not wait until a disabled pupil approaches them before making changes to the way in which they operate.


There is no obligation under the Act to make reasonable adjustments by providing any auxiliary aids and services, or by making physical alterations to buildings. Auxiliary aids and services would usually be obtained through the SEN duties. Physical features (and the curriculum) are covered by the longer-term planning duties for LEAs and schools.


The planning duties mean that schools and LEAs have to address three distinct elements of planned improvements in access for disabled pupils:



What is meant by a substantial disadvantage?

In order for the reasonable adjustment duty to apply, pupils (or prospective pupils) must be put at a substantial disadvantage. “Substantial disadvantage” is not defined in the Act. “Substantial” is likely to mean more than minor or trivial. The Code of Practice says that what is substantial disadvantage is likely to depend on a number of factors. These include:


What is ‘reasonable’?

The Act does not define ‘reasonableness’ – this will depend on the circumstances of a particular case and ultimately be for the SEN and Disability Tribunal to decide. However, in considering what reasonable adjustments to make, the Code of Practice gives some guidance as to what the school can take account of:



Can a failure to take ‘reasonable steps’ be justified?

Failing to take reasonable steps can only be justified if there is a reason that is both material to the case and substantial, as with justification for less favourable treatment.


What can parents do if they feel that their child has been discriminated against?


There are several options available to parents:


The SEN and Disability Tribunal

Parents must make a claim of unlawful discrimination to SENDIST within six months of when the alleged discrimination took place. This time period is extended to eight months if the dispute is referred to the DRC conciliation service before the expiry of the six-month period. Where the discrimination takes place over a period of time, the six months begins at the date of the last discriminatory act. A claim can be lodged at any time from the time the alleged discrimination occurred to the expiry of the six (or eight) month period. In most cases, particularly in respect of fixed-period exclusions, permanent exclusions and admissions, the sooner the claim is made the better.


If a claim of unlawful discrimination is successful, SENDIST can:

Examples of the kind of orders that SENDIST might make are:

SENDIST will be able to set deadlines when directing action by schools and LEAs.

Admissions Appeal Panel

If the claim is about admissions, a claim can be made to the admissions appeal panel. The claim should be made in writing and it should set out the circumstances that have led to the claim being made. There is often a very short time limit in which to appeal but this should not be less than 14 days (that is, ten working days) from the date of notification to the parents that their application for a place at the school was unsuccessful. Claims being heard by admission appeal panels will be subject to the usual rules and procedures of those panels.


Exclusion appeal panels

When the head teacher excludes a pupil, the parent is notified immediately (usually by telephone) with a letter to follow within one school day. The disciplinary committee of the school governing body then meets to review the head teacher’s decision to exclude the pupil and decide whether to confirm that decision.

A letter to the parents from the clerk to the disciplinary committee sets out the decision of the committee and explains that, in cases of permanent exclusion where the exclusion has been upheld, there is a further right of appeal to an independent Exclusion appeal panel set up by the LEA. Details of the procedure to be followed are provided in a letter from the LEA.


There are 15 school days from the day the parents are told of the decision of the disciplinary committee in which to lodge an appeal to the Exclusion appeal panel. The Panel has to meet within 15 school days of the appeal being lodged.


Further sources of advice and information

The RNIB Group has dedicated Pre-16 Education Services which help support blind and partially sighted children and young people, their families and staff involved in offering direct services within education. We offer a wide range of services to promote social inclusion and good practice within education. Our staff are based throughout the UK. RNIB can also advise further on the Disability Discrimination Act. Call our Helpline on 0303 123 9999 or email [email protected] for more details.


Please note that on 28 September 2007 the Disability Rights Commission closed. However, their website is still available but will no longer be updated.


On 1 October 2007 The Equality and Human Rights Commission (EHRC) replaced the three former equality commissions: the Commission for Racial Equality (CRE), the Disability Rights Commission (DRC) and the Equal Opportunities Commission (EOC). The Equality and Human Rights Commission is a non-departmental public body (NDPB) established under the Equality Act 2006 – accountable for its public funds, but independent of government. The new commission is working to eliminate discrimination, reduce inequality, protect human rights and to build good relations, ensuring that everyone has a fair chance to participate in society.


The EHRC has taken over the function of the former DRC. The EHRC commission deals with disability discrimination as well as discrimination on the grounds of race, gender, age, religion and sexual orientation, as well as providing advice and information on the Human Rights Act. Any references to the DRC should also be read as references to the EHRC after October 2007.


The EHRC publishes the education codes and provides advice and information on the DDA. Contact the relevant country helpline for more information:


RNIB is committed to achieving comprehensive civil rights for all disabled people. The Disability Discrimination Act, although much improved, does not deliver all these rights. We will continue to campaign for additional legislation, such as a Single Equality Act, and attitudinal change within society to deliver this goal, as well as for the delivery of high quality services for all blind and partially sighted people.


RNIB Helpline

The RNIB Helpline is your direct line to the support, advice and products you need. We’ll help you to find out what’s available in your area and beyond, both from RNIB and other organisations.


Whether you want to know more about your eye condition, buy a product from our shop, join our library, find out about possible benefit entitlements, be put in touch with a trained counsellor, or make a general enquiry, we're only a call away.


RNIB Helpline

Telephone: 0303 123 9999

Email: [email protected]


We are ready to answer your call Monday to Friday 8.45am to 5.30pm. Outside these times leave us a message and we'll get back to you as soon as possible.


This factsheet is not an authoritative statement of the law. Whilst we have made every effort to ensure that the information we have provided is correct, we cannot accept any responsibility or liability.


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