Disability discrimination claims and the duty to make reasonable adjustments

Last year we reported on the rise of disability discrimination claims in the Special Educational Needs & Disability (“SENDIST”) First Tier Tribunal (“the Tribunal”) and the latest quarterly statistics released by the Tribunal have shown an even higher increase in submitted claims this year.

In 2022/23, there were 330 registered appeals in relation to disability discrimination, 137 more than the previous year, representing a 71% increase. This compares to an increase of only 16% in the previous year.

This increase reflects what we are seeing in practice with a noticeable upturn in schools seeking legal advice in cases where claims have been brought against them by parents of pupils with special educational needs or disabilities.

Alongside an increase in the number of claims for disability discrimination being brought against schools we are also seeing an increase in these claims proceeding to a full hearing. The Tribunal disposed of 160 disability discrimination claims in 2022/23 and, of these disposals, 94 claims (58%) were decided at hearing.

That said, of those decided at hearing the Tribunal have reported that 64% of these claims were dismissed and only 36% upheld. This is a stark contrast to the reported figures for SEN appeals where 98% were upheld.

What is the duty to make ‘reasonable adjustments’?

A common ground that we see in claims for disability discrimination is that the school failed to make reasonable adjustments.

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 and a failure to make reasonable adjustments could amount to disability discrimination.

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 for a school to consider a request or need for reasonable adjustments, although many schools do so anyway.

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”.

If the pupil is, or may be, disabled within the meaning of the Act, the school must consider whether any reasonable adjustments may be made to remove any substantial disadvantage to the disabled pupil as compared with non-disabled pupils. What is reasonable depends on the particular disadvantage caused to a pupil and what individual schools can do to address it. Factors that governing bodies should take into consideration include, but are not limited to, whether the adjustment will remove the substantial disadvantage, the cost of the proposed adjustment and the resources available internally or from external providers.

The duty to make reasonable adjustments is an anticipatory and continuing one. It applies to current disabled pupils at school and to prospective disabled pupils who may apply for admission. We have recently updated our detailed guide on making reasonable adjustments for disabled pupils, which includes consideration of what schools should be mindful of when considering excluding a disabled pupil or requesting that they be withdrawn from the school. The updated guide is now available on the ISBA reference library.

We have also recently updated the model SEND Policy and Accessibility Plan to assist schools in ensuring continued compliance with their Equality Act obligations.