Disability discrimination in education

This page provides information on what constitutes disability discrimination and explains the duties of education providers to not discriminate against pupils on the basis of their disability.

What is disability discrimination in education?

Disability is considered a protected characteristic under the Equality Act 2010. Therefore it is unlawful for an education provider to discriminate directly or indirectly against a pupil on the basis of their disability.

Additionally, there are certain circumstances where an education provider is expected to take positive steps to ensure that disabled pupils have equal access to education and the provision of services.

Discrimination is unlawful in relation to:

• prospective pupils - for example, in how a school formulates their admission arrangements;
• pupils attending the school/college even if temporarily absent or excluded - for example, in how a school has applied their behaviour policy to a certain situation;
• former pupils who have a continuing relationship with the education provider.

The duty applies to all education providers - for example, early-education providers (nurseries), Independent schools, state schools and further / higher education colleges.

Unlawful discrimination can apply to every aspect of school life. It covers all school activities, such as:

• extra-curricular activities;
• leisure activities;
• after-school clubs;
• homework clubs;
• sports activities;
• school trips; and
• school facilities (for example, libraries and IT facilities).

What is disability?

Disability is defined in Section 6 Equality Act 2010 as:

“a physical or mental impairment that has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities”.

• Normal day-to-day - activities that people do on a regular basis, for example, this includes walking, dressing, cleaning or having a conversation.
• Long-term - the impairment should have lasted or should be expected to last at least a year.
• Substantial - not minor or trivial.
• Physical impairment - includes sensory difficulties such as visual or hearing impairments.
• Mental impairment - includes learning difficulties, autism, dyslexia, speech and language difficulties, attention deficit hyperactivity disorder (ADHD).
• Some specified medical conditions, such as HIV, multiple sclerosis and cancer are all considered as disabilities, regardless of their effect.

Wearing glasses or temporary conditions such as drug or alcohol addiction are not counted as a disability.

There are specific conditions which are not considered to be impairments under the Equality Act 2010. These are defined in Regulation 4(1) Equality Act 2010 (Disability) Regulations 2010. This states the following:

4.- (1) For the purposes of the Act the following conditions are to be treated as not amounting to impairments:—

(a) a tendency to set fires,

(b) a tendency to steal,

(c) a tendency to physical or sexual abuse of other persons, (see paragraph below). 

(d) exhibitionism, and

(e) voyeurism.

Schools can no longer rely on an Equality Act 2010 exemption to exclude children with disabilities who have a tendency to physically abuse, following an Upper Tribunal decision. C&C v The Governing Body of a School, [2018] UKUT 269 (AAC). 

What forms of discrimination are there in education?

It's unlawful for an education provider to treat disabled students less favourably compared to other students. The following are forms of discrimination which are prohibited under the Equality Act 2010:

1. Discrimination arising from a disability
2. Direct discrimination and indirect discrimination
3. Failure to make reasonable adjustments
4. Harassment
5. Victimisation

What is discrimination arising from disability?

An education provider must not discriminate against a disabled pupil because of a reason that is as a result of their disability - for example, a school refusing to let a child attend a school trip because they are physically disabled.

Discrimination arising from disability can be justified in certain circumstances, if it is:

• carried out for a legitimate reason; and
• a proportionate way of achieving that legitimate aim.

Example: A school carries out a health and safety assessment before allowing a wheelchair-user to attend a school trip. They conclude that it would inappropriate to allow the pupil on the trip where they cannot safeguard the pupil and/or the staff. In this situation the school could justify the unfavourable treatment towards the pupil because it is necessary and proportionate to protect the pupil's safety.

This is called objective justification. The key points under this defence are:

• that the aim (in the example, safeguarding the pupil and staff) must be legitimate;
• whether alternative measures could have met the legitimate aim without such a discriminatory effect (if proportionate alternative steps could have been taken then the unfavourable treatment is unlikely to be justified);
• whether the legitimate aim outweighs the discriminatory effects of the unfavourable treatment (the more discriminatory a measure, the harder it will be to justify);
• that the burden is on the education provider to show that the unfavourable treatment was objectively justified; and
• whether there was objective justification is a decision for the tribunal hearing the case. The tribunal is not limited to considering whether a reasonable education provider might have considered it justified.

What is direct discrimination?

Education providers must not treat a disabled pupil less favourably simply because that pupil is disabled - for example, a school refuses to admit children or young people who are disabled. There is no justification for direct discrimination in any circumstances.

Discrimination by association - When a pupil is treated unfairly on the basis of another person's protected characteristic. For example, it is discriminatory for a school to exclude a pupil because one of their parents is disabled.

Discrimination by perception - When a pupil is treated unfairly because they are perceived to possess a protected characteristic when in fact they do not. For example, where a school perceives a pupil to be disabled and treats them less favourably as a result.

What is indirect discrimination?

Education providers are prohibited from doing something which applies to all pupils but which is more likely to have an adverse effect on disabled pupils - for example, a school providing application forms in a format which is not wholly accessible to disabled pupils, such as those with a visual impairment. This is indirect discrimination unless the school can demonstrate that it is done for a legitimate reason and it is a proportionate way of achieving that legitimate aim. See above for more details on when something may be considered as done for a legitimate reason and it is a proportionate way of achieving that legitimate aim.

What does the duty to make reasonable adjustments for disabled people involve?

Section 20 Equality Act 2010 places a duty to make reasonable adjustments for those with disabilities on all those to whom the Act applies. This duty is triggered in circumstances where a disabled person is placed at a substantial disadvantage in comparison to persons who are not disabled. For most organisations there are three duties; however, Schedule 13 Equality Act 2010 makes clear that schools only need to follow the first and third requirements. As a result schools are required to make reasonable adjustments to avoid disadvantages which may be caused by:

• a provision, criterion or practice (PCP) – for example, a disabled pupil requires medication related to their condition but there is a school policy which states that no drugs are permitted on the premises;
• the lack of an auxiliary aid.

Schools are not required to make reasonable adjustments where disadvantages may be caused by a physical feature. However, under Schedule 10 of the Equality Act 2010 they should have an accessibility strategy which works on improving the physical environment of the schools for the purpose of increasing the extent to which disabled pupils are able to take advantage of education and benefits, facilities or services provided or offered by the schools over a prescribed period of time.

From September 2012, schools and local authorities have a duty to supply auxiliary aids and services as reasonable adjustments, where these are not being supplied through:

• a Special Educational Needs statement (from 01-09-2014); or
• an Education, Health and Care Plan (from 01-09-2014); or
• from other sources.

Examples of auxiliary aids include:

• a piece of equipment;
• assistance from a sign language interpreter, lip-speaker or deaf-blind communicator;
• extra staff assistance;
• an electronic or manual note-taking service;
• induction loop or infra-red broadcast system;
• videophones;
• audio-visual fire alarms;
• readers for people with visual impairments;
• assistance with guiding;
• an adapted keyboard;
• specialised computer software.

The duty to make ‘reasonable adjustments’ should be anticipatory. Education providers should foresee the potential barriers that disabled pupils may face and act to remove or minimise such barriers before a disabled pupil is placed at a substantial disadvantage.
When considering ‘reasonable adjustments’, factors to take into account include:

• the impact of the disability on the pupil’s learning, participation and independence;
• how effective the adjustment would be in overcoming the disadvantage;
• how practicable it is to make the adjustment;
• the health and safety of everyone within the school;
• the financial costs which would be incurred through making the adjustment.

What is harassment?

Harassment occurs when a member of school staff engages in unwanted conduct that either:

• violates a pupil's dignity; or
• creates an intimidating, hostile, degrading, humiliating or offensive environment for a pupil.

A school must not harass a pupil because of their disability - for example, a teacher shouting at a pupil for not completing their work when it is a consequence of their disability that they cannot perform tasks at the same pace as other students.

What is victimisation?

Victimisation is when an education provider treats a pupil less favourably because:

• they are making a claim against an education provider for acting in breach of the Equality Act 2010; or
• they are providing information/evidence in the course of someone else making a claim; or
• their parent or sibling is making a complaint of discrimination.

For example, a school gives a pupil a fixed-term exclusion because they've complained about a disabled friend being discriminated against.

What is the Public Sector Equality Duty of public bodies?

The Section 149 Equality Act 2010 introduced a single Public Sector Equality Duty (PSED) which may also be referred to as the general duty. It applies to public bodies, including local authority maintained schools and academies, and extends to all protected characteristics - race, disability, sex, age, religion or belief, sexual orientation, pregnancy and maternity and gender reassignment.

The duty states that, in carrying out their functions, public bodies are required to have due regard to the need to:

• eliminate discrimination and other conduct that is prohibited by the Equality Act 2010;
• advance equality of opportunity between people who share a protected characteristic and people who do not share it;
• foster good relations, across all characteristics, between people who share a protected characteristic and people who do not share it.

In meeting their duty, schools are required to publish information to demonstrate how they are complying with the Public Sector Equality Duty and to prepare and publish equality objectives (Equality Act 2010 (Specific Duties) Regulations 2011).

Additionally, schools are required to publish an accessibility plan which must demonstrate how the school plan to:

• increase the extent to which disabled pupils can participate in the curriculum;
• improve the physical environment of schools to enable those with disabilities to take better advantage of education and services; and
• improve the availability of accessible information to those with disabilities.
  (Schedule 10 Equality Act 2010 "Accessibility for disabled pupils").

What should I do if I think my child is being discriminated against?

• Request to meet with the head teacher of the education provider to discuss the incident.
• Speak to the responsible body. This will be the governing body for local authority maintained schools and the Academy Trust if the school is an academy.
• Follow the education provider's written complaints procedure.
• Also/alternatively, make a claim for unlawful discrimination through the First Tier Tribunal (SEND) in England.

How do I make a complaint to the Tribunal?

The First Tier Tribunal (SEND) can decide disability discrimination claims and appeals. The claim must be filed within 6 months of the most recent incident.

For more information on making a disability discrimination claim, see our How-To Guide on Claiming against disability discrimination in schools.

The Equality Advisory Support Service has produced non-statutory guidance for schools on discrimination and equality in their technical guidance document.

 

Please note that disability discrimination is a complex area of law and we are unable to provide advice on the merits of individual cases. We would strongly advise speaking with an education law solicitor on the merits of your case. You can search for solicitors through the Law Society website.