Schools are subject to the Equality Act 2010: see Equality Act in schools. This includes a duty on schools to make reasonable adjustments, which this page deals with.
Reasonable adjustment duty in outline
The duty to make reasonable adjustments is very important. Broadly, a school needs to make adjustments to what it would normally do, so far as reasonable, to meet the requirements of disabled people.
The duty to make reasonable adjustments is in the Equality Act 2010. Schools often also have duties to cater for the needs of disabled pupils under the special educational needs (SEN) regime. However, in the context of children who stammer, an important difference is that any legal claim to a tribunal normally needs to be under the Equality Act, for example for breach of the reasonable adjustment duty, rather than the SEN regime. See Schools: resolving disputes.
The reasonable adjustment duty is wide. It includes admission arrangements, provision of education, and access to a benefit, facility or service for pupils (EqA s.20 and Sch 13).
6.8 The duty to make reasonable adjustments requires a school to take positive steps to ensure that disabled pupils can fully participate in the education provided by the school, and that they can enjoy the other benefits, facilities and services that the school provides for pupils.
6.9 Many reasonable adjustments are inexpensive and will often involve a change in practice rather than the provision of expensive pieces of equipment or additional staff.
6.10 A school’s duty to make reasonable adjustments is an anticipatory one owed to disabled pupils generally, and therefore schools need to think in advance about what disabled pupils might require and what adjustments might need to be made for them.
Schools Technical Guidance – England, issued June 2013, Equality and Human Rights Commission.
On the anticipatory nature of the duty, see below Duty is anticipatory.
On which rules apply to sixth forms (the rules on this page or the largely similar rules for further education) see Equality Act in schools>Sixth forms.
The reasonable adjustment duty does not apply to the content of the curriculum, but does apply to how the curriculum is delivered. See Exception: Content of curriculum. There are also special rules on Admission to selective schools.
There are many examples of how a child who stammers can be supported in school: see Schools: BSA resources.
Links: Official guidance
For official guidance, see Equality Act in schools: Links.
Two heads of reasonable adjustment duty
Provision, criterion or practice
This is probably the most important part of the reasonable adjustment duty. It is triggered where a provision, criterion or practice (PCP) puts disabled pupils (or for admissions, disabled persons) at a substantial disadvantage in comparison with persons who are not disabled.
“Substantial” disadvantage means only “more than minor or trivial” (EqA s.212(1) and from para 6.14 of the Schools Technical Guidance – England). Legally, it seems one looks first at whether there is a substantial disadvantage on people with the particular kind of disability, so not just the individual pupil. See further Reasonable adjustments by service providers>No need for all people who stammer etc to be disadvantaged.
Where there is the required substantial disadvantage, the school has a duty to take such steps as it is reasonable to have to take to avoid the disadvantage.
“Provision, criterion or practice” has a wide meaning:
6.17 …The duty in relation to provisions, criteria and practices covers the way in which a school operates on a daily basis, including its decisions and actions.
Schools Technical Guidance – England, updated 2014, Equality and Human Rights Commission.
The duty is in EqA s.20(3), with Sch 13.
Auxiliary aids and services
As regards schools this was new in Equality Act 2010. It took effect only from 1st September 2012. The new duty is in EqA s.20(5), with Sch 13, brought into force by SI 2012/2148.
It applies where disabled pupils (or for admissions, disabled persons) would, but for the provision of an auxiliary aid, be put at a substantial disadvantage 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 EqA s.20(11).
A school might, for example, provide a child who stammers with some one to one support from a teacher, or teaching assistant. This could be an auxiliary service which it is reasonable for the school to have to provide, if the child is at more than a minor or trivial disadvantage.
Auxiliary aids and services in schools were excluded from the Disability Discrimination Act 1995, on the ground that they were provided for in the rules on special educational needs (SEN). However, as regards children with less complex needs (such as stammering alone, without further impairments), the SEN rules normally do not give a right to take a claim to a tribunal for adjustments. Now parents are able to take a claim to the First-tier Tribunal (in England) if a school fails to comply with this new reasonable adjustment duty. 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 – see Resolving disputes.
Landmark case won by family of diabetes sufferer (heraldscotland.com), 10th July 2013
Support for ensuring diabetic children got their insulin injections was withdrawn. The Additional Support Needs Tribunal in Scotland held this to be a breach of the duty to make reasonable adjustments. It was reasonable to recruit support staff whose duties included a responsibility for the administration of insulin.
Aim is same level of access to education as for others?
On related areas of the Equality Act – namely provision of services and exercise of public functions – the courts have stated that the policy of the Act is not to say that “just about accessible” is OK. The idea is to provide access as close as reasonably possible to that enjoyed by non-disabled people. This is an important factor taken into account by the courts in deciding what adjustment is “reasonable”. See further Reasonable adjustments by service providers>Access should be as close as possible to that enjoyed by others.
I am not aware of cases or guidance saying this as regards education. However it is difficult to see why this should not also apply to education – I would expect the courts to agree that it should do.
Duty is anticipatory
The duty is anticipatory, owed to disabled persons in general (EqA Sch 13 para 2(3)(b)). This means the duty does not only arise when a disabled individual presents himself. The school should anticipate the requirements of disabled applicants and pupils and the adjustments that may have to be made for them (para 6.10 and 6.60 of the Schools Technical Guidance – England, updated 2014).
There is discrimination only when failure to take steps leads to the detriment of a particular individual. However, the fact that schools should be reasonably anticipating needs means that in deciding the extent of the duty, one does not look only at what could reasonably be done when the particular disabled person is identified.
A school decides that at registration pupils will not be required to give formulaic replies. This makes registration easier for any pupils who stammer.
See stammeringineducation.net: Registration (archive).
More on anticipatory reasonable adjustment duties, in a different context but under very similar legal provisions: Reasonable adjustments by service providers>”Anticipatory” duty. This includes Ad hoc adjustment duty on service providers?
Cost of reasonable adjustments
S.20(7) EqA makes clear that a person required to make a reasonable adjustment is not entitled to require the disabled person to pay 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 (UK Parliament website) at col 565.
An independent fee-paying school provides a child who stammers with some one to one support from an adult, as required by its reasonable adjustment duty to provide auxiliary services. The school would not be allowed to charge extra for this.
Is knowledge of disability required?
Does the school have a duty to make reasonable adjustments if it does not know of the disability? This is not clear. The Schools Technical Guidance – England discusses it at para 6.60 without giving a clear answer.
The Equality Act does not actually give the school a defence if it does now know of the disability. Also since the duty is anticipatory (see above) the school should, so far as reasonable, anticipate and meet the needs of disabled pupils.
I discuss the approach the courts may take – perhaps for schools also – on Universities: Knowledge of disability.
Confidentiality requests
There is a special rule on ‘confidentiality requests. This is where the parent or (subject to certain conditions) the disabled child makes a request for the nature or existence of the disability to be treated as confidential.
Assuming 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 (EqA Sch 13 para 8, and para 6.61 of the Schools Technical Guidance – England).
