Proposed changes on education

This page outlines changes to the education rules which have be proposed for inclusion in a new Single Equality Bill.

The Government green paper setting out proposals for a Single Equality Bill is almost entirely silent on education. However following a consultation on education (available on the archived DRC website) the Disability Rights Commission produced recommendations for what it would like to see in the Bill.

Under the following subheadings, I summarise the Government's limited proposals for change in the Green Paper, and (followed by a question mark) the DRC's recommendations which are not as yet accepted by the Government.

'Justification'

The Government proposes a new 'justification' test which would, it seems, apply to education as well as employment and service provision. Education providers would have to meet a higher threshold to justify treating someone less favourably for a reason related to their disability (or, in some cases perhaps, for failing to make a reasonable adjustment). The provider would have to show that their conduct is a 'proportionate means of achieving a legitimate aim'.

The proposal is subject to consultation. For more see my page about employment changes. The Disability Rights Commission supported a single objective justification test, but with different wording. Also, said the DRC, there should be no justification defence for 'direct discrimination'. (A Framework for Fairness Response (on archived DRC website), p.33-36, 28).

Resolution of cases in Scotland

The Government was consulting on whether DDA education cases in Scotland should be heard by Additional Support Needs Tribunals, rather than the sheriff courts. This would mirror the position in England and Wales. The proposals are in the Green paper at para 7.27.

The DRC agreed that the power of Additional Support Needs Tribunals should be extended in this way. (A Framework for Fairness Response (on archived DRC website), p.68).

Auxiliary aids and services to be included in pre-16 education provisions?

Auxiliary aids and services were excluded from the current legislation on the ground that provision for these is made through SEN. However, the DRC said evidence shows that there is a gap in provision for disabled children which can lead to barriers in participation in school life and difficulties accessing teaching and learning. The exclusion of auxiliary aids and services from the DDA rules should be removed, said the DRC (A Framework for Fairness Response (on archived DRC website), page 21-22). The recommendation is not as yet accepted by the Government.

Changes to resolution of disputes?

The DRC consulted on and made numerous recommendations designed to ensure effective redress for disabled learners:

In England and Wales, children should be given the ability to take DDA claims in their own name, rather than the parent having to do it on the child's behalf. In Scotland children can already so this when they have capacity to do so, which is presumed from age 12. Children in England and Wales can currently be denied their rights when a parent does not wish to claim, or where a child is in the care of a local authority which is their 'parent' and indeed may itself be the body against which the claim would be brought. Also there is currently an anomolous difference between a 17-year old in a school 6th form (parent must claim) and one in FE 6th form college (can bring own claim in County Court). There should be a right to independent advocacy.
The EHRC should have a role in enforcing tribunal orders, and such orders should be enforcable via judicial review. SENDIST has broad power to make orders, including for training of staff and changes to practices, but there is no way of enforcing the orders.
Tribunals should have power to award compensation in pre-16 education cases. There should be a tiered approach, with the main focus aimed at making up for the discriminatory act (change of policy, extra tuition, apology etc) and compensation if that does not achieve an equitable outcome.
DDA claims relating to permanent exclusions and admission should be heard by the tribunals, rather than special appeal panels as now.
The questionnaire procedure should be available in education claims.
Post-16 education disputes should be determined by equality tribunals (based on employment tribunals) rather than County Courts.

A Framework for Fairness Response (on archived DRC website), pages 8, 22-25. The recommendations are not as yet accepted by the Government.

Direct discrimination?

The Disability Rights Commision recommended that direct discrimination outside employment should be a stand-alone unlawful act. It would be extended to schools, and also to those post-16 institutions for which the concept is not currently used. At present direct discrimination, for which there is no justification defence, is only prohibited in relation to employment and vocational training, including eg universities. Schools as well as some post-16 institutions are currently excluded. (A Framework for Fairness Response (on archived DRC website), p 28)

The recommendation is not as yet accepted by the Government.

No 'justification' defence for failure to make reasonable adjustments?

The Disability Rights Commision recommended there should no longer be a 'justification' defence for failure to make reasonable adjustments, where the defence still applies - ie for schools and some post-16 education institutions. The justification defence for reasonable adjustments has already been abolished in employment. Any concerns of the education provider etc are adequately addressed by the provision that only 'reasonable' adjustments are required. Allowing a failure to make a reasonable adjustment to be justified is unfair and unnecessarily complicates the legislation. (A Framework for Fairness Response (on archived DRC website), p.28-29)