The Equality Act 2010 (the “Act”) imposes a duty on schools to make reasonable adjustments to ‘policies, criteria and practices’ to address potential issues of discrimination. Since 1 September 2012 the Act introduced a new aspect to the reasonable adjustments duty, including the following in relation to ‘auxiliary aids and services’:
“where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, [a duty] to take such steps as it is reasonable to have to take to provide the auxiliary aid “.
A failure to make reasonable adjustments amounts to disability discrimination.
This note is designed to assist schools in meeting their reasonable adjustments duty and provide practical guidance on when the duty arises, what is expected, and the consequences of breaching the duty. It should be noted that schools are not required to remove or alter physical features in order to meet their reasonable adjustments duties. Alterations to physical features may form part of a school’s Accessibility Plan which all schools are required to keep under review and must cover a period of at least three years. It is likely that schools will also wish to use their Accessibility Plan to develop their capacity to make reasonable adjustments.
What Happens if a School Breaches the Duty?
One of the most important things to understand about this duty is that it is not punitive. The aim of the Act is to make the world a better place by changing attitudes, incrementally improving provision and providing a forum for settling disputes when parties reach a stalemate. But, it is important to note that no one will be imprisoned, fined or made to pay damages if they get these duties wrong. However, schools may be asked to apologise (and to publish the apology on their website) and they may be told how to “do it right” and ordered to do so.
The best advice we can give is to approach individual situations with an open mind and a positive attitude looking at how you can work together with parents and pupils to remove barriers and ensure that the disabled pupil has appropriate access to the school and curriculum. Considering the situation from a legal point of view to understand the scope and limitations of the legal duties is likely to be advisable at an early stage to avoid unnecessary escalation and any reputational issues.
In the event of escalation, if a parent is dissatisfied, they may use the school complaints procedure as a first step. Otherwise the Health, Education and Social Care Chamber of the First Tier Tribunal (previously known as SENDIST) will hear all claims relating to disability discrimination (except those which are employment related) and can make any order they think appropriate except ordering the payment of compensation. This means that unlike the employment provisions of the Act where there is a finding of discrimination, there is no ability to make an award for ‘injury to feelings’ as compensation.
Likely orders of the First Tier Tribunal may include:
- an apology to a pupil,
- carrying out staff training, and/or
- amending policies and procedures to remedy the damage done.
Although these are not punitive, schools will need to bear in mind the reputational risks associated with discrimination claims and the time and costs involved in defending such claims. This makes it very important to keep working with the parents during the months leading up to a tribunal hearing with a view to resolving problems without the need for a hearing. An apology costs nothing, and alterations to policies and procedures will cost no more pursuant to a tribunal order than they would have done if they had been reasonably and properly adjusted in the first place. The main “risks” are therefore managerial:
- managing parental expectations
- avoiding souring relationships within the school community
- avoiding reputational damage
- avoiding wasting time and legal costs.
Schools should also bear in mind that a finding of discrimination in the Tribunal could be used as leverage by parents in a subsequent claim including for breach of contract. If parents can establish that a discriminatory act amounts to a breach of an implied and/or express term of the School/Parent Contract and that breach has caused them loss, they may be successful in a breach of contract claim which could entitle them to compensation.
A successful claim of discrimination also risks non-compliance with Part 1 of the Independent School Regulatory Requirements.
Where a tribunal finds a school to have acted discriminatively, schools that are registered charities will also need to consider whether a serious incident report should be made to the Charity Commission.
If schools have any concerns or doubts as to their obligations under the Act, appropriate professional training and advice should be sought.
With that in mind, read on…
Who is Responsible for Compliance with the Act?
The proprietor bears ultimate responsibility for complying with a school’s equalities obligations. For many schools as companies limited by guarantee, this will be the directors that comprise the governing body. Typically they will delegate their duties to Heads and members of the senior management team (“SMT”).
When the Duty Applies
The duty only arises if a pupil is ‘disabled’ within the meaning of the Act. If the pupil is not disabled, there is no legal duty to consider reasonable adjustments, although many schools may wish to do so anyway. Simply because a pupil needs SEN support does not mean they are disabled but there will be overlap.
The first step for a school to consider then is, “Is the pupil disabled?”.
A pupil is disabled within the meaning of the Act if they have a physical or mental impairment that has a substantial and long-term effect on their ability to carry out normal day-to-day activities. Long-term is defined as lasting, or likely to last, for at least 12 months. A substantial disadvantage means “more than minor or trivial”. Guidance has been provided by the Equality and Human Rights Commission (EHRC) on the definition of disability and provides some examples. Certain conditions such as ADHD, dyslexia and Asperger’s Syndrome have potential to fall within the definition when they have a “substantial and long-term effect on [a person’s] ability to carry out normal day-to-day activities”. Pupils develop at different rates and those pupils who may need a little ‘boost’ or a little extra support for a short period of time are unlikely to fall within the meaning of disabled.
The duty is an anticipatory and continuing one. It applies to current disabled pupils at school and to prospective disabled pupils who may apply for admission.
It is often not clear cut if a pupil is disabled. Only a tribunal can ultimately determine if a pupil is ‘disabled’ within the meaning of the Act; not a medical expert, parent or a school. Schools may therefore agree to treat a pupil as if they were disabled.
Steps to Consider
If the pupil is or may be disabled within the meaning of the Act, the school must go on to consider whether any reasonable adjustments may be made to remove any substantial disadvantage as compared with non-disabled pupils.
Offering in-house screening tests and obtaining an educational psychologist’s report can be helpful in exploring a potential disability and assessing what additional support might assist the pupil to overcome any substantial disadvantage. Schools should be clear whether parents are expected to pay for the cost of obtaining a report from an educational psychologist. For many schools it will still be reasonable to pass on the costs of such a report, or to advise parents to seek such a report privately. Thereafter, it will be for the school to decide whether or not any adjustments, aids or services recommended are reasonable in all the circumstances.
It is unlawful to charge for ‘reasonable adjustments’ and schools will not be able to pass on the cost of such an adjustment to parents of disabled pupils. Schools will not be expected to make or pay for adjustments which are not reasonable.
What is reasonable depends on the particular disadvantage caused to a pupil and what individual schools can do to address that disadvantage. The school has to decide whether or not they can cater adequately for a child’s needs. Factors that governing bodies should take into consideration include, for example:
- whether the adjustment will remove the substantial disadvantage;
- the cost of the proposed adjustment;
- the resources available internally or from external providers (such as the health and education services);
- the practicability of making the adjustment;
- the need to maintain academic, musical, sporting and other standards;
- health and safety requirements;
- the interests of other pupils including those who may be admitted to the school; and
- the school’s charging structure generally.
Whether the cost of a proposed adjustment is reasonable may require consideration in the context of a school’s resources and available funds. It makes sense that what is reasonable for one school to provide may not be for another. Schools may wish to set a budget for any adjustments each year. The school is not expected to fund all adjustments whatever the cost (i.e. the school has to be mindful that it has responsibility for all pupils). The school should consider each case for adjustments individually, analysing cost in context. Schools should be mindful that cost alone will rarely be sufficient to justify a decision not to make an adjustment, but other factors may be relevant such as the interests of other pupils. Schools should consider factors – as set out above – other than cost alone.
With reference to the school’s charging structure, if say, scholarship pupils have extension lessons within the fees, and the elite sports teams receive additional coaching at no extra cost, it may be unreasonable in that context for pupils with disabilities to be the only cohort which is required to pay extra for the support they need. Likewise, if the school has developed or is developing facilities for one cohort of pupils with a particular interest, a theatre for example, this would suggest that it might reasonably be expected to cater well for pupils with disabilities also.
With regard to one-on-one learning support, the question of whether such support can be charged to parents will require careful consideration. If a child has learning support needs but does not have a disability, the school is permitted to charge for learning support without falling foul of the Equality Act (although would still need to take care before instigating any change in the school’s charging structure). Where a child has a disability, the school will need to determine whether or not one-on-one support is a reasonable adjustment for the particular child; if it is reasonable, it is unlawful to pass on the cost to parents.
Schools who provided one-on-one learning support to parents at no additional cost prior to 1 September 2012 will be in a more difficult position to now pass on the cost to parents, unless they are able to demonstrate that it is no longer a reasonable adjustment e.g. due to a substantial decline in financial circumstances and/or resources. For all other schools, whether one-on-one support is a reasonable adjustment will be fact specific and will require schools to take into account the factors listed above.
Auxiliary Aids and Services
Anything which helps, aids or renders assistance for disabled pupils is likely to be an auxiliary aid or service. For example:
- Provision of larger computer monitors, large print or information on audio tapes for those with a sight impairment;
- Teaching assistants to assist disabled pupils with a mobility impairment;
- Induction hoops and/or training a member of staff in British Sign Language so they are able to communicate with pupils with a hearing impairment; or
- Portable ramps or handrails for those with a physical impairment.
The decision as to whether a school can reasonably provide each or any of these auxiliary aids and services is a specific judgement for each school in relation to each disabled pupil which should be exercised on a case-by-case basis.
Admissions and Exclusions
The reasonable adjustments duty applies to prospective disabled pupils and may need to be considered at the point of admission. Whilst conditions for admissions apply equally to all applicants (such as having to pass an entrance examination or attend a taster day), a school will need to consider what reasonable adjustments can be made to admissions arrangements where they put a disabled applicant at a substantial disadvantage compared to non-disabled applicants.
If a disabled applicant otherwise meets a school’s admission criteria, a school may also have to consider whether they can adequately cater for that child’s needs, taking into account the reasonable adjustments duty. The school will need to make a proper judgement based on the child’s particular needs and circumstances. If there are no adjustments that can reasonably be made to accommodate the child, a decision not to admit a child is unlikely to be discriminatory. However it is good practice to explain to parents why an offer of a place will not be made to avoid any misunderstanding.
It will be discrimination if a disabled pupil is excluded for behaviour connected to his or her disability, unless the school can justify the exclusion as a proportionate means of achieving a legitimate aim. However, this defence is unlikely to apply if the school has failed to comply with its duty to make reasonable adjustments for that pupil.
Reasonable adjustments for disabled pupils must be made to both the exclusion process and the disciplinary sanctions imposed. This might include applying different sanctions, or applying the sanctions in a different way, so as not to place the disabled pupil at a disadvantage compared to other pupils.
The recent case of Ashdown House School v JKL (2019) emphasised the importance of making reasonable adjustments in exclusion cases. Ashdown saw parents challenging the decision of the school to exclude their 10 year old son following his violent behaviour in school. The child has ADHD, sensory processing difficulties and emotional and social difficulties resulting from trauma in early childhood. He is disabled under the Act. The School admitted that the exclusion of the boy amounted to unfavourable treatment but maintained that the exclusion was a proportionate means of achieving a legitimate aim, the aim being to ensure the health and safety of the staff and pupils at the School. However, the Tribunal held that the exclusion was not proportionate. Whilst the School had made reasonable adjustments for the child based on his EHC Plan, there were other reasonable adjustments that could have been made by the School. Specifically, the Tribunal ruled that “If the School was concerned about escalating behaviours, we would expect the school to have instigated an urgent review of his EHC Plan, sought to have contacted CAMHS, considered additional support, such as putting back the 1:1 support and have alerted parents that there was a real risk of permanent exclusion as stated above, this would have enabled parents to seek an urgent EHC Plan review or take medical advice about increasing his medication“. There was also evidence that violent incidents by other pupils had been dealt with less severely. In response, the Tribunal ordered immediate reinstatement of the pupil and for the School to issue a formal apology. This decision was upheld on appeal.
Equally, a decision to ask parents to withdraw their child (because the school feels unable to meet the disabled child’s needs) should not be taken without first considering what reasonable adjustments can be put in place to assist that child’s access to educational provision. If, after due consideration of all the relevant facts (and following consultation with parents) it transpires that the school is not able to meet the child’s needs, any request for parents to withdraw their child must be permitted by, and done in accordance with, the terms and conditions of the Parent/School Contract.
How Schools can Comply
To assist schools in complying with the duty, we suggest that the governing body considers the following:
- Review the parent contract documentation and school policies
- Review what is included in the services provided. Any additional extras or supplemental charges cannot be passed on to parents when the duty applies. It may be helpful to provide parents with clear information from the outset as to what and when they will be charged for additional support or assistance, reflecting what the governors or proprietor have decided is reasonable.
- Consider having written guidance and policies in place concerning reasonable adjustments for disabled pupils if not already in place. This may simply be a case of adding a few words or lines to the existing SEN and disability policy. In addition, schools may need to tweak or more extensively amend their admissions policy and procedures to record that reasonable adjustments can be made for candidates with disabilities.
- Keep the Accessibility Plan under review. It is likely that schools will wish to work towards developing their inclusive practices and provision for pupils with disabilities and keep this under a review over a period of time.
- Put internal procedures in place
- Ensure all staff (but specifically members of SMT, members of staff responsible for SEN or Learning Support, staff responsible for admissions, and governors) understand the school’s reasonable adjustments duty and how the school proposes to fulfil their duty. All staff should know where enquiries on this issue should be directed.
- Consider appointing a governor with specific responsibility for reviewing policies and procedures annually from an equality perspective. This is likely to include liaising with the bursar/finance director regarding the school budget; liaising with SEN and/or the Learning Support team as and when required; and feeding back to the governing body and the Head with any findings or recommendations.
- In larger establishments, consider whether there are members of SMT who can take responsibility for authorising those smaller adjustments which do not exceed a specified sum.
- Consider requesting an EHC Plan statutory assessment with a view to a child being given an EHC Plan which may then cover the provision of the auxiliary aids or services the child needs. If behaviour seems to be escalating, or the EHC Plan does not seem to be addressing the needs of the pupil, schools should be proactive in consulting with parents regarding requesting further assessments and also request an emergency review of the EHC Plan before deciding on sanction. However, please be aware that not every pupil identified as having SEN will fall within the Act’s definition of disability.
- It is advisable that schools meet with parents of prospective pupils with a disability to discuss on an informal basis whether the school can cater for their child’s needs. Schools should also provide an informal process for parents and/or pupils to raise concerns or complaints. Schools should meet with parents to discuss any initial concerns, ideally with any right of appeal possibly using the school’s complaints procedure.
- Budget review
- Schools will not be expected to make an adjustment where it is not reasonable to do so, for example, where the cost of the proposal outweighs the disadvantage caused to a disabled pupil. Allocating a particular percentage of the budget to meet the needs of current and prospective disabled pupils may help schools assess whether they are able to provide for the proposed adjustment considering all the pupils who attend the school.
- Consider what auxiliary aids and services can be provided at a lesser cost to the school, for example, portable ramps and larger font in internal assessments.
- In relation to matters which may prove contentious, the school should keep a “paper trail” (electronic is fine), and record all decisions of the governing body, and those with delegated responsibility, relating to decisions about reasonable adjustments.