Proposed changes on education

This page outlines proposed changes to the education rules in the Equality Bill. The proposed changes would not necessarily apply to Northern Ireland.

Links:
Equality Bill
Government response to the Discrimination Law Review (pdf file, link to equalities.gov.uk), July 2008

'Justification'

The current justification test is to be replaced. Education providers would have to meet a higher threshold to justify treating someone less favourably for a reason related to their disability. The provider would have to show that its conduct is a 'proportionate means of achieving a legitimate aim'. The new test would also apply to other areas of the DDA such as employment. (Sources: Equality Bill clauses 14 and 18; Government response to the Discrimination Law Review, July 2008, para 11.22-11.28)

For more, see Employment: Proposed changes.

The education provider will have no justification defence for direct discrimination.

Remedying the Malcolm case

The Equality Bill published in April 2009 contains two new heads of disability discrimination, which are intended to address the House of Lords decision in London Borough of Lewisham v Malcolm. That decision severely limited the scope to make a claim for less favourable treatment. More on Remedying the Malcolm case.

Direct discrimination

No justification defence

The justification defence is being abolished for 'direct discrimination'. Currently, direct discrimination is not justifiable in employment and most post-16 education. That approach is now being extended to other areas of education.
(Sources: Equality Bill clause 13; Government response to the Discrimination Law Review, July 2008, para 11.11)

Discrimination by association or perception

The general Equality Bill definition of 'direct discrimination' in Clause 13 will apply. Accordingly it will include direct discrimination because of another person's disability, or because of a perceived disability. In the Coleman case the European Court of Justice decided that discrimination and harassment by association (i.e. where it is someone else who is disabled) must be covered as regards employment. However, the Government has decided to extend this to services and education as well. For more, see Discrimination because of association, or perceived disability.

Harassment

The Equality Bill contains freestanding rights against harassment by education providers (Equality Bill clauses 80, 86 etc). Even under current law though, harassment is likely to be unlawful under provisions against unfavourable treatment.

The general Equality Bill definition of 'harassment' in Clause 24 will apply. Accordingly, as with 'direct discrimination' above, it will include harassment related to another person's disability, and also harassment related to perceived disability. For more, see Discrimination because of association, or perceived disability.

Reasonable adjustments

No 'justification' defence for failure to make reasonable adjustments

This is also reflected in the Equality Bill. The Disability Rights Commision had recommended that there should no longer be a 'justification' defence for failure to make reasonable adjustments where the defence still applied - i.e. 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 were, said the DRC, 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)

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

Schools and LEAs are to have a duty to provide an auxiliary aid or service where reasonable. At present, the reasonable adjustment duty for auxiliary aids and services does not apply to the pre-16 education provisions of the DDA.

Auxiliary aids and services were excluded in the DDA as it relates to schools on the ground that provision for these aids and services is made through SEN. However, the new duty was recommended in December 2009 by the Lamb Inquiry - see www.dcsf.gov.uk/lambinquiry/ (recommendation 51, see particularly para 6.42). Back in 2007 the inclusion of auxiliary aids and services in the Equality Bill as regards schools had also been recommended by the Disability Rights Commission; 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 (A Framework for Fairness Response, page 21-22).

The change will mean that the school has a 'duty' to provide the aids and services so far as reasonable (even though the child is not statemented), and parents will have a right to take the matter to the First-tier Tribunal if a school fails to comply. However, discussing any issues with the school without resorting to a Tribunal will doubtless remain the main way of ensuring a child's needs a met. Under exisiting rules on special educational needs (SEN), which run parallel to the disability discrimination rules, rights to put in a Tribunal claim are limited to assessment and statementing. As regards SEN, Tribunal claims are currently not possible at the level of School Action or School Action Plus, which deal with less complex needs and are more likely to be relevant for stammering. The new Equality Bill right will not necessarily (and indeed will probably not) cover as much as might be expected to be provided under School Action or School Action Plus - the tribunals will need to develop how far the duty extends. It is also important generally, though perhaps not for stammering, that the new duty will in some ways go beyond SEN rules, in that it will cover children with medical needs but not learning difficulties (page 5 of EHRC Briefing 19th Jan (link to EHRC website, Word doc)).

The new duty, in clause 20(5) of the Equality Bill (4/12/09 version), is to apply 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. The duty is to take such steps as it is reasonable to have to take to provide the auxiliary aid. The provision is extended to auxiliary 'services' by clause 20(7) of the Bill.

The change was made at the House of Lords committee stage in January 2010 - HL Hansard 19/1/10 (link to UK Parliament website) from col 881).

Adjustment duty to be anticipatory

The Government believed that the Bill was already drafted to as to make the reasonable adjustment duty 'anticipatory' in education (see from col 1450 in HL Hansard 27/1/10 (link to UK Parliament website)), as it clearly is for provision of services. Being 'anticipatory' means the duty is owed to disabled people generally rather than just an individual as and when they appear - it expects education providers to have done planning for the needs of disabled people.

However, doubt was expressed on whether the previous wording achieved this, and the Governement has now agreed amendments to Schedule 13 (Education: Reasonable adjustments) which make it clear that the reasonable adjustment duty is anticipatory (col 152-153 HL Hansard 2/3/10 (link to UK Parliament website) and col 1391). There seems to be an exception for grant of qualifications by universities.

'Substantial' to be defined

For the reasonable adjustment duty to arise, there must be a 'substantial' disadvantage to the disabled person. 'Substantial' might mean 'very large' or it might mean 'more than minor or trivial'. The education Codes of Practice say that it means 'more than minor or trivial', but this is now to be confirmed by the legislation itself. The Equality Bill will define 'substantial' to mean 'more than minor or trivial'. The Government accepted an amendment to this effect by Lord Low (col 1339 HL Hansard 2/3/10 (link to UK Parliament website)).

In SCA Packaging v Boyle it was suggested in the House of Lords that, despite guidance such as the Codes, judges start with a clean slate when deciding what legislation means. This provision in the Equality Bill is a very welcome clarification to help guard against unpleasant surprises if the meaning of 'substantial' is challenged in higher courts.

Cost of reasonable adjustments

On 13th January 2010, a clause was added to the Equality Bill to make clear that a person required to make a reasonable adjustment is not entitled to require the disabled person to pay to any of the costs of complying with the duty. (There is a limited exception for where the law expressly says otherwise.) HL Hansard 13/1/10 (link to UK Parliament website) at col 565.

Exam boards

At present the application of a competence standard is not subject to the duty to make reasonable adjustments. However the reasonable adjustment duty normally applies apart from that, in particular to how the competence standard is assessed.

Apparently there was some confusion as to what was a competence standard. Under the Equality Bill it will be for the regulator (Ofqual in England), to decide after consultation what cannot be reasonably adjusted (clause 96(7)-(9) Equality Bill 4/12/01 version). The regulator can also specify that even where the reasonable adjustment duty applies, certain adjustments should not have to be made.

In the House of Lords Committee, a change has been made so that one of the factors the regulator must take into account is the "need to minimise" the extent to which disabled persons are disadvantaged in attaining the qualification because of their disabilities, rather than just the "desirability" of minimising it. Some other proposed amendments were rejected - e.g. the Government refused to accept that a criterion to maintain public confidence is unnecessary given that there is already one to retain the reliability of the exam. See from column 1441 in HL Hansard 27 Jan 2010 (link to UK Parliament website).

Public equality duty

The government has said that it intends Ofqual to be subject to the public equality duty in the Equality Bill: col 643-646 HL Hansard 9/2/10 (link to UK Parliament website).

Shift in burden of proof

In the Equality Bill the Government is harmonising the law by providing for the burden of proof in non-employment disability discrimination cases to be transferred to the respondent once a prima facie case has been made. This is a rule which current applies in employment.
(Sources: Equality Bill clause 130; Government response to the Discrimination Law Review, July 2008, para 11.77-11.78)

Relationships which have ended

In the Equality Bill the Government is outlawing discrimination against disabled people in the provision of education in respect of relationships which have ended, as part of a harmonisation measure across all equality strands;.
(Sources: Equality Bill clause 102; Government response to the Discrimination Law Review, July 2008, para 11.72-11.74)

Resolution of cases in Scotland

DDA education cases in Scotland are to be heard by Additional Support Needs Tribunals, rather than the sheriff courts. This would mirror the position in England and Wales. (Sources: Equality Bill Schedule 17: Government response to the Discrimination Law Review, July 2008, para 6.91ff)

Changes not being made

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. The First-tier Tribunal (formerly 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. These recommendations do not seem to be as yet accepted by the Government - with the possible exception of using the questionnaire procedure in education claims (clause 132 of Equality Bill).

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