The DDA in Schools

Part 4 of the Disability Discrimination Act 1995 (as re-written by The Special Educational Needs and Disability Act 2001) covers disability discrimination in the field of education with effect from 1st September 2002. A child only has the rights if his or her stammer is a "disability" as defined in the DDA.

The Code of Practice for Schools (link to EHRC website), which I refer to in the summary below as the "Code", is available online. The Code of Practice is not an authoritative statement of the law - it is for the tribunal and courts to interpret the law. However, a tribunal or court must take into account any part of the Code that appears relevant.

There are further resources on the EHRC website: 'Disability in Education'.

Northern Ireland has separate rules, so this page may not apply. However, the provisions discussed on this page do apply in Scotland as well as in England and Wales, except where I say otherwise.

Who is covered?

The rules extend to both state schools and independent schools. They apply even to pupils over 16 when in school. There are separate rules on post-16 education not in schools.

Nursery provision is covered either under these rules, or under the goods and services rules in Part 3 of the DDA. Which rules apply depends on the type of provision - see the Code of Practice at para. 4.12 and 10.7-10.9.

A child only has the rights if his or her stammer is a "disability" as defined in the DDA. The Code of Practice (para. 4.6) points out that a child may have significant behaviour difficulties and that these may relate to an underlying physical or mental impairment amounting to a disability within the DDA. (This can happen with a stammer). In this event, the child is covered by the DDA by reason of the underlying impairment. Chapter 7 of the Code highlights the importance of schools seeking to identify any underlying impairment - see further below on the lack of knowledge defence.

The legislation imposes its obligations on the "responsible body" of the school, as defined. For example, the governing body is normally the "responsible body" of a maintained school. For simplicity I generally talk about about the "school" rather than the "responsible body".

The responsible body is responsible for anything done by employees in the course of their employment, or by agents acting within their authority. There is a defence against discrimination by an employee where the responsible body took such steps as were reasonably practicable to prevent such acts. (Para 10.15-10.19B of Code)

What is the basic duty not to discriminate?

It is unlawful for a school to discriminate against a disabled child:

in relation to admission to the school as a pupil;
in relation to education and associated services for pupils; or
by excluding the child from the school.

The Code (para. 4.23) sees education and associated services as a "broad term that covers all aspects of school life", which may therefore include not just teaching but also e.g. assessment and exam arrangements, school meals, school clubs and activities, and school trips. Para.4.23 of the Code gives many more examples.

However, services provided to the public such as an open day or car boot sale will be covered by the normal Part 3 goods and services provisions (para. 4.24 of Code).

Victimisation is covered (para 10.10-10.14A of Code).

What counts as 'discrimination'?

Meaning of 'discrimination'

A school discriminates if, broadly speaking:

it treats the child less favourably for a reason related to his disability. compared with how it would treat a person to whom the reason does not apply, unless the school shows it is "justified"; or
to the pupil's detriment it fails to comply with its s.28C duty to make reasonable adjustments. (More on reasonable adjustments below.)

What counts as treating a child less favourably has been seriously restricted by the House of Lords decision in London Borough of Lewisham v Malcolm (June 2008). The Court of Appeal has held that this decision applies to education: R (N) v London Borough of Dagenham and Barking Independent Appeal Panel (Feb 2009). In the Court of Appeal case, a child with ADHD was held not to have been treated less favourably when she was excluded from school due to her behaviour - because a non-disabled child who behaved like that would have been treated in the same way. Rather than just claiming less favourable treatment, claimants may want to reframe their case as being also a breach of the duty to make reasonable adjustments (below).

Lack of knowledge defence

A school has a defence if it shows it did not know, and could not reasonably have been expected to know, that the child was disabled. In the case of failure to make a reasonable adjustment (and possibly other "failure to take a particular step"), it must also show that the failure was attibutable to the lack of knowledge.

Chapter 7 of the Code goes into some detail on this defence:

schools should be proactive in seeking out information (para 7.9);
schools need to ensure that if any member of staff has been told then relevant information is communicated to anyone else who may need to know (paras 7.11-7.12; but see also paras 11.2-11.4 on Data Protection Act requirements, and below on confidentiality requests);
the Code also points out, for example, that a school may have difficulty claiming not to have known about a disability if on the basis of indicators such as underachievement and difficult behaviour it might reasonably have been expected to know a pupil was disabled (para 7.8).

Sometimes a teacher may not realise a child has a stammer. Perhaps as awareness amongst teachers of stammering issues increases, such as through British Stammering Association activities (link to BSA website), it will become less reasonable not to recognise that a child has a stammer.

What is the 'justification' defence?

A school is entitled to treat a disabled pupil less favourably, or to fail to make a reasonable adjustment, if it shows it is "justified".

To do this the school must normally show that the reason is both:

material to the circumstances of the particular case - so there must be a clear connection between the reason given and the circumstances of the particular case; and
substantial, i.e. more than minor or trivial (para. 5.14 of Code).

Chapter 5 of the Code of Practice discusses the test, giving examples. See also case law on the 'justification' test in the context of employment.

In looking at whether the school is justified, it is important to consider whether the school could make a reasonable adjustment to alleviate the problem. The school is not justified if it would not have been justified had it made any reasonable adjustments which it was obliged to make.

There is one further ground on which a school can justify less favourable treatment, namely that it is the result of a "permitted form of selection" as defined. However, the operation of the selection procedures themselves is covered by the duties (para 5.18 of Code).

Duty to make reasonable adjustments

Duty

Under DDA s.28C, a school must take reasonable steps to ensure that disabled pupils are not placed at a substantial disadvantage in relation to education and associated services, or arrangements for determining admissions.

"The reasonable adjustments duty assumes the involvement of disabled pupils in every aspect of the life of the school" (para. 6.29 of Code).

The duty is anticipatory and is owed to disabled children in general, though there is discrimination only when unjustified failure to take steps leads to the detriment of a particular child. One example of an anticipatory reasonable step given by the Code (6.13A) is a school reviewing its policy on bullying to ensure that it addresses bullying linked to disability. Another example on bullying (6.18B) illustrates the need to keep policies under review.

"Substantial" disadvantage means only "more than minor or trivial" (para 6.9 of Code). The Code gives as an example a school failing to negotiate the special arrangements for disabled pupils taking public exams (6.11A). (Note that exam boards themselves came within the DDA from September 2007. More on exam boards...)

The wide meaning of education and associated services is discussed above.

Defences

The school has a defence if it shows its failure is "justified" (see previous heading), or that the lack of knowledge defence above applies.

Exceptions

S.28C does not include provision of auxiliary aids or services - these are supposed to be dealt with by the special educational needs (SEN) framework in state schools.

Also removal or alteration of a physical feature is not covered - that is a matter for longer term planning duties (eg accessibility strategies and plans, mentioned below).

Chapter 6 of the Code deals with the reasonable adjustment duty in much more detail, including relevant factors to consider (eg the role of maintaining standards) and gives further examples.

Confidentiality requests

There are special rules on "confidentiality requests" (para 7.13-7.17 of Code). If a request has been made by the parent or (subject to the limitation below) by the child for the nature or existence of the disability to be kept confidential, and the school is aware of the request, then in deciding whether a step is reasonable regard is had to the extent to which the step is consistent with complying with the request. If the request is by the child, the school must reasonably believe that the child has sufficient understanding of the nature and effect of the request.

Accessibility strategies and plans

Local education authorities in England and Wales must prepare and implement accessibility strategies.

Schools in England and Wales must prepare and implement accessibility plans.

For example, there should be a strategy or plan for increasing the extent to which disabled pupils can participate in the school's curriculums, and improving the physical environment. Plans and strategies should be kept under review and revised if necessary.

There is DfES guidance for LEAs and schools: Accessible Schools: Planning to increase access to schools for disabled pupils (link to teachernet.gov.uk) (July 2002).

There are separate planning duties in Scotland.

Residual duty of local education authorities

Local education authorities in England and Wales, and education authorities in Scotland, have a general duty not to discriminate against disabled pupils (actual or prospective) in discharging their functions under education legislation.

The duty extends to making reasonable adjustments.

If there is discrimination

You can contact the Equality and Human Rights Commission helpline. See also the rest of my page on sources of help and advice.

The Code discusses the possibility of making a complaint directly to the responsible body, e.g. school governing body, and mentions that support for parents in England and Wales making a complaint may be available locally (para 9.32-9.33 for England and Wales, para 8.13 for Scotland). However, the six month time limit for putting in a formal claim, for example to the First-tier Tribunal (formerly SENDIST), needs to be borne in mind. A complaint to the responsible body would not count as a formal claim.

A pupil's parent in England can bring a complaint of discrimination to the First-tier Tribunal (www.sendist.gov.uk). The time limit to make a claim is generally six months from the discrimination, but if within that time the dispute is referred to conciliation (see below) there is an extension of two months. Also the First-tier Tribunal has a general discretion to hear claims out of time if it considers it just and equitable. There is a separate SEN Tribunal for Wales.

Certain admission and exclusion complaints in England and Wales are dealt with by appeals panels instead (para 9.5 of Code).

The First-tier Tribunal can make orders, particularly with a view to obviating or reducing the adverse effect on the person concerned. However, it cannot award compensation. Chapter 9 of the Code deals with complaints to the Tribunal, and other appeal panels.

Scottish cases generally go to the Sherriff court. Again this cannot award damages. In come cases older children can claim in their own right. Chapter 8 of the Code discusses bringing cases in Scotland.

In Northern Ireland, as well as a court system, there is a Disability Conciliation Service Northern Ireland (link to equalityni.org) operated by the NI Equality Commission, which can consider education disputes if both sides agree.

Some examples from the Code of Practice for Schools

Example 6.11A: "A secondary school with a number of disabled pupils fails to negotiate the special arrangements for disabled pupils who are taking public exams. This is likely to place disabled pupils at a substantial disadvantage and may be unlawful."
(Note that exam boards will themselves come within the DDA from September 2007. More on exam boards...)
Example 6.13A: "Following training on disability, a primary school reviews its policy on bullying to ensure that it addresses bullying linked to disability. This is likely to be a reasonable step that they should take."
Example 6.18B: "A child with one arm was happily included in her nursery class, which had a separate playground. When she moves up a year she starts to be bullied by older children in the big playground. She becomes withdrawn in the classroom. It is possible that the pupil is already at a substantial disadvantage. The school's bullying policy includes bullying related to disability. The school is concerned that the policy is not working and they take advice from local support services and from the pupil. The school decides that it needs to take a number of steps, including
- addressing name-calling and bullying, including bullying related to disability, in two assemblies;
- undertaking work on disability issues in a number of classes.
These are likely to be reasonable steps that the school should have taken and should now take."

Links

First-tier Tribunal

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