Equality Act 2010 Education Authority’s Duties towards Pupils with Disabilities Elaine Falconer Legal & Democratic Services Aberdeen City Council

OBJECTIVES Duties owed by EA’s to disabled children under the Equality Act 2010 Who is disabled Direct and Indirect discrimination Discrimination arising from disability What are reasonable adjustments ? Interaction with the Education (Additional Support for Learning) (Scotland) Act 2004

Protected Characteristics for Schools Disability Sex and sexual orientation Race – colour, nationality, ethnic origin Religion or Belief Gender reassignment Pregnancy and maternity Not marriage/civil partnership or age

Who is covered by the Act? Prospective pupils so pupils applying for admission to a school Pupils already attending local authority schools including those absent or excluded Former pupils in certain circumstances e.g. provision of references The duty not to discriminate applies to Independent Schools too

What is covered by the Act ? Admission arrangements Provision of education Access to benefits, facilities and services Failure to provide education Failure to afford access to benefits, facilities and services Exclusion from school Subjecting a pupil to any other detriment

Provision of education and access to a benefit, facility or service The duty to pupils covers everything that is provided for pupils and goes beyond formal education covering all school activities such as extra curricular and leisure activities, after school and homework clubs, sports activities, school facilities such as library and IT facilities, work experience, school uniform, assessments, exams and disciplinary procedures

Who is disabled ? A person has a disability for the purposes of the Act if s/he has a physical or mental impairment which has a substantial and long-term adverse effect (has lasted or is likely to last 12 months) on her/his ability to carry out normal day-to-day activities ‘Impairment’ – no need for a medical diagnosis ‘Physical’ includes diabetes, asthma, epilepsy ‘Mental’ includes dyslexia, ASD, ADHD, Down’s ‘Substantial’ – more than minor or trivial ‘Normal day-to-day activities –, attending class, dressing, memory or concentration difficulties

Types of discrimination Direct Discrimination Indirect Discrimination Discrimination arising from disability Failure to provide reasonable adjustments

Direct Discrimination When a person treats another less favourably that they treat (or would treat) others because of a protected characteristic Covers stereotyping, perception and association Direct discrimination cannot be justified

Indirect Discrimination When an apparently neutral provision, criterion or practice (PCP) is applied which puts, or would put, people who share a protected characteristic at a particular disadvantage compared to relevant pupils who do not share that characteristic Disadvantage includes denial of opportunity or choice, deterrence, rejection or exclusion E.g. a school has a policy of automatic detention if a pupil breaks the school rules on 3 occasions – ADHD pupils break the rules more often ASNTS – spare places on Paris trip announced by tannoy – disabled pupils in the learning centre didn’t hear about it until after the trip was already full

What is a PCP Not defined in the Act Includes arrangements e.g. who to admit Policies e.g. swimming policy – no bikinis Procedures e.g administration of medicine Rules e.g. disciplinary rules – 3 strikes and you’re out The way education is provided – e.g. in practical classes One-off decisions – not to allow a disabled child to attend a school trip Proposals or directions to do something in a certain way Can be justified if the PCP is a proportionate means of achieving a legitimate aim

What does proportionate means of achieving a legitimate aim mean ? ‘Objective justification test’ The aim of the provision, criterion or practice (PCP) must respond to a real and lawful need e.g. ensuring the health, safety and welfare of pupils and staff Proportionate means appropriate and necessary but necessary doesn’t mean that the PCP is the only possible way of meeting the legitimate aim Is there a less discriminatory way to achieve the aim ? The need to reduce or minimise cost cannot by itself amount to a legitimate aim but cost can be taken into account as part of a school’s justification for adopting a PCP along with other good (not trivial) reasons.

Discrimination arising from Disability An Education Authority/school discriminates against a disabled pupil where they treat a pupil unfavourably because of something arising in consequence of their disability and they cannot show that that the treatment is a proportionate means of achieving a legitimate aim unless they can show that they did not know, and could not reasonably be expected to know, that the individual was disabled ‘in consequence’ – a connection between whatever led to the unfavourable treatment and the disability

Duty to make reasonable adjustments Where a disabled pupil is placed at a substantial disadvantage to non-disabled pupils because of a PCP or the absence of an auxiliary aid or service, there is a duty to take reasonable steps to avoid that disadvantage Eg a pupil with a visual impairment requiring printed materials in large font will be at a substantial disadvantage if materials are provided in small print Purpose of the duty is to enable disabled pupils to have access to an education as close as is reasonably possible to the education normally offered to pupils at large Cannot justify a failure to make a reasonable adjustment, the only question is whether or not the adjustment is reasonable

What is meant by reasonable steps? Something which is reasonable for the school to have to do considering The extent to which taking any particular step would be effective in overcoming the substantial disadvantage suffered by the pupil The extent to which support will be provided under the ASL Act The resources of the school and the availability of financial or other assistance The financial and other costs of making the adjustment The practicability of the adjustment The effect of the disability on the individual Health and Safety requirements Academic, musical, sporting and other standards Interests of other pupils and prospective pupils

Interaction with the ASL Act Many pupils who are disabled will also have additional support needs In some cases the additional support a disabled child receives will amount to reasonable adjustments In other cases reasonable adjustments will have to be made in addition to the additional support the child receives

EHRC Equality and Human Rights Commission’s website – downloadable publications What equality law means for you as an education provider: schools Reasonable adjustments for disabled pupils – Scotland Technical Guidance for Schools in Scotland