It can be difficult to know if your child has been discriminated against because of their disability. Here we’ve prepared some frequently asked questions to help.
- How can I be sure my child has been discriminated against because of their disability?
- How do I take the school or LA to court over Disability Discrimination?
- How can Education lawyers help me?
How can I be sure my child has been discriminated against because of their disability?
Section 6 Equality Act 2010 tells us that your child is considered to be disabled if they have:
“a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.
- Normal day-to-day – activities that people do on a regular basis, for example, this includes walking, dressing, cleaning or having a conversation.
- Long-term – the impairment should have lasted or should be expected to last at least a year.
- Substantial – not minor or trivial.
- Physical impairment – includes sensory difficulties such as visual or hearing impairments.
- Mental impairment – includes learning difficulties, autism, dyslexia, speech and language difficulties, attention deficit hyperactivity disorder (ADHD).
- Some specified medical conditions, such as HIV, multiple sclerosis and cancer are all considered as disabilities, regardless of their effect.
Equality Act 2020
It’s unlawful for an education provider to treat disabled students less favourably compared to other students. The following are forms of discrimination which are prohibited under the Equality Act 2010:
- Discrimination arising from a disability – An education provider must not discriminate against a disabled pupil because of a reason that is as a result of their disability – for example, a school refusing to let a child attend a school trip because they are physically disabled.
- Direct discrimination – Education providers must not treat a disabled pupil less favourably simply because that pupil is disabled – for example, a school refuses to admit children or young people who are disabled.
- Indirect discrimination – Education providers are prohibited from doing something which applies to all pupils but which is more likely to have an adverse effect on disabled pupils – for example, a school providing application forms in a format which is not wholly accessible to disabled pupils, such as those with a visual impairment.
- Failure to make reasonable adjustments – Education providers have a duty to make ‘reasonable adjustments’ to make sure that disabled students are not discriminated against. This applies in circumstances where a disabled person is placed at a substantial disadvantage in comparison to persons who are not disabled.
- Harassment – Harassment occurs when a member of school staff engages in unwanted conduct that either violates a pupil’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for a pupil.
- Victimisation – Victimisation is when an education provider treats a pupil less favourably because they are making a claim against an education provider or they are providing information/evidence in the course of someone else making a claim or their parent or sibling is making a complaint of discrimination.
The discrimination may relate to a decision not to admit a child to the school, the provision and arrangements being made by a school for a child or a school’s decision to exclude a child. If you believe your child has been discriminated against or may have been discriminated against by their school then we can advise you on what action to take.
How do I take the school or LA to court over Disability Discrimination?
The SEND Tribunal hears Disability Discrimination Claims in relation to state maintained and independent schools and the procedure is very similar to that of bringing an appeal about an EHC needs assessment or EHC plan. However, the timescales are a little different.
For claims about disability discrimination against a school, the claim must be received by the SEND Tribunal within six months of the discrimination you are claiming about (or within six months of the most recent alleged act or omission if they have been continuing for a period of time). Claim forms can be found on the SEND Tribunal site.
If you are making a SEND appeal and a disability discrimination claim to the SEND Tribunal at the same time, you can request that they are heard together at the same hearing. However, you will need to complete a separate form for each claim.
Local authorities are public bodies and therefore are under a legal obligation to comply with what is known as the Public Sector Equality Duty. This is a duty on public authorities to consider or think about how their policies or decisions affect people who are protected under the Equality Act. This means that they must consider equality in the course of their day to day business and they may be held accountable for the action or the actions of their employees if it can be proven that their actions were not justifiable. You can make a complaint using the complaints procedure of your Local Authority and you may also be able to challenge the decision by making a Judicial Review challenge.
An example of where a local authority might be considered to be in breach of their duty in respect of a child’s education might be where the LA may be failing to properly implement the provision specified in a child’s EHC Plan or to meet the deadlines for carrying out an assessment or review. However, it is worth keeping in mind that Local Authorities also have a duty to promote the wellbeing of children under the Children and Young Persons Act and a duty to uphold the right to education under Article 14 of the European Convention on Human Rights, and we would be happy to discuss any issues relating to this that may have affected your child.
How can Education lawyers help me?
Whilst the Law clearly defines what should happen, in many cases parents find that they need expert and professional advice to guide and support them through the relevant processes, especially when it comes tackling disability discrimination. We have an excellent track record of successfully pursuing claims and recommend you contact us at the earliest opportunity for a no obligation chat.