Disability Discrimination Tribunal Claims

Types of Discrimination

Failure to provide a reasonable adjustment for a disabled child

Schools have a duty to take reasonable steps to avoid putting disabled pupils at a disadvantage. These steps may have to be taken in advance of the pupil attending the school.                               

Discrimination is when a school has not complied with its duty to take positive steps to ensure that a disabled pupil can fully participate in the education and other services that the school provides. This can include specialised computer equipment, adapted desks or speech and language therapy.                     

Matters such as cost, health and safety requirements, and the need to maintain standards, are some factors that may be taken into account when considering whether a particular step is reasonable.  

Direct Discrimination

• When the school treats the pupil worse than a non-disabled pupil in a similar situation because of their disability. 
• 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. There is no justification for direct discrimination in any circumstances.
• Discrimination by association – When a pupil is treated unfairly on the basis of another person’s protected characteristic. For example, it is discriminatory for a school to exclude a pupil because one of their parents is disabled.
• Discrimination by perception – When a pupil is treated unfairly because they are perceived to possess a ‘protected characteristic’ when in fact they do not. For example, where a school perceives a pupil to be disabled and treats him/her less favourably as a result.

Indirect Discrimination

• Where a school has a particular policy or way of working that has a worse impact on disabled people compared to people who are not disabled. This is unlawful unless the organisation or employer is able to show that there is a good reason for the policy and it is proportionate. 
• 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. This is indirect discrimination unless the school can demonstrate that it is done for a legitimate reason, and it is a proportionate way of achieving that legitimate aim.

Failure to make reasonable adjustment

• Schools should make reasonable adjustments to accommodate pupils with disabilities. What is reasonable depends on the facts – the Equality and Human Rights Commission have published guidance on this
• S. 20 of the Equality Act 2010 places a duty to make reasonable adjustments for those with disabilities on all those to whom the act applies. This duty is triggered in circumstances where a disabled person is placed at a substantial disadvantage in comparison to persons who are not disabled. For most organisations there are three duties; however, Schedule 13 of the Equality Act makes clear that schools only need to follow the first and third requirements.

As a result schools are required to make reasonable adjustments to avoid disadvantages which may be caused by:

• Duty 1 - a provision, criterion or practice (PCP) – for example, a disabled pupil requires medication related to their condition but there is a school policy which states that no drugs are permitted on the premises;
• Duty 3 - the lack of an auxiliary aid.
• Duty 2 - Schools are not required to make reasonable adjustments where disadvantages may be caused by a physical feature. However, under Schedule 10 of the Equality Act they should have an accessibility strategy which works on improving the physical environment of the schools for the purpose of increasing the extent to which disabled pupils are able to take advantage of education and benefits, facilities or services provided or offered by the schools over a prescribed period of time.
• From September 2012, schools and Local Authorities have a duty to supply auxiliary aids and services as ‘reasonable adjustments’, where these are not being supplied through an Education, Health and Social Care Plan; or from other sources.

Examples of auxiliary aids include:

• a piece of equipment;
• assistance from a sign language interpreter, lip-speaker or deaf-blind communicator;
• extra staff assistance;
• an electronic or manual note-taking service;
• induction loop or infra-red broadcast system;
• videophones;
• audio-visual fire alarms;
• readers for people with visual impairments;
• assistance with guiding;
• an adapted keyboard;
• specialised computer software.
• The duty to make ‘reasonable adjustments’ should be anticipatory. Education providers should foresee the potential barriers that disabled pupils may face and act to remove or minimise such barriers before a disabled pupil is placed at a substantial disadvantage.

When considering ‘reasonable adjustments’, factors to take into account include:

• the impact of the disability on the pupil’s learning, participation and independence;
• how effective the adjustment would be in overcoming the disadvantage;
• how practicable it is to make the adjustment;
• the health and safety of everyone within the school;
• the financial costs which would be incurred through making the adjustment.

Harassment

When the pupil is treated by a staff member in a way that makes them feel humiliated, offended or degraded. 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.

A school must not harass a pupil because of their disability – for example, a teacher shouting at a pupil for not completing their work, when it is a consequence of their disability that they cannot perform tasks at the same pace as other students.

Victimisation

When the pupil is treated badly because they or their parents have made a complaint of discrimination under the Equality Act 2010.

Victimisation is when an education provider treats a pupil less favourably because:

• they are making a claim against an education provider for acting in breach of the Equality Act 2010; 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.

For example, a school gives a pupil a fixed-term exclusion because they’ve complained about a disabled friend being discriminated against.

Unlawful discrimination can apply to every aspect of school life. It covers all school activities, such as:

• extra-curricular activities;
• leisure activities;
• after-school clubs;
• homework clubs;
• sports activities;
• school trips; and
• school facilities (for example, libraries and IT facilities).

Timetable

For claims about disability discrimination against a school, the claim must be received by the SEND Tribunal within six months of the discrimination parents 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).

Appeals about disability discrimination generally have a 20 week timetable.

If a pupil has been permanently excluded and the school’s governing body has upheld the exclusion, and the SEND Tribunal is being asked to order their reinstatement, the appeal is likely to be dealt with more quickly – within six to eight weeks of submitting the claim.

Claims of disability discrimination can be bought against public bodies such as early years settings, schools, colleges and local authorities. If the claim against a school was successful, it might be ordered to:

• Arrange training for school staff
• Change school policies or guidance
• Provide extra tuition, to make up for lost learning
• Provide a written apology
• Provide trips or other opportunities to make up for activities the child or young person may have missed
• Make reasonable adjustments to accommodate the pupil’s disability
• Change the location of lessons or activities within the school
• Where a child had been refused entry to an independent school in a manner that was discriminatory, the school could be ordered to admit the child or young person
• If a child was permanently excluded and this was found to be discriminatory, the school could be ordered to re-admit the child or young person.

The following things cannot be ordered:

• Financial compensation
• Physical alterations to school buildings
• The dismissal of a particular staff member

How to make an appeal

A claim of disability discrimination against a school of any type (whether state funded or independent), or against a maintained nursery, can be made to the First-tier Tribunal (Special Educational Needs and Disability).

A claim against a private nursery, a further education college or a local authority would need to be brought in the County Court.

To make an appeal against disability discrimination, you will need to complete a Claim Form.  This must be received by the SEND tribunal within six months of the alleged discrimination.

For more information you can contact the SEND tribunal on:

Telephone: 01325 289 350

Email: sendistqueries@hmcts.gsi.gov.uk