Disability discrimination in school

11 mins read

This advice applies in England, Scotland and Wales. Read information for families in Northern Ireland.

Disability discrimination is when a disabled pupil is treated worse than a non-disabled child or where a school has not done things differently for a disabled pupil where necessary.a

The law around discrimination

The law covering discrimination is the Equality Act 2010. This is a consolidation of previous legislation, including the Disability Discrimination Act. As well as disability, the Equality Act also covers discrimination relating to other ‘protected characteristics’, such as race and sex.

The Equality Act applies to England, Wales and Scotland, with a few differences in each nation, mainly in how you can challenge discrimination. The Equality Act does not apply to Northern Ireland, which has separate legislation. For more information about rights in Northern Ireland, see the website of the Equality Commission for Northern Ireland, or the Childen’s Law Centre.

Which schools and providers does the Equality Act apply to?

The Equality Act applies to:

• All schools, both state-funded and independent.
• Further and higher education institutions – colleges and universities.
• Service providers. This includes private and voluntary sector early years settings and after-school and holiday clubs.

Which areas of school life are covered?

The act covers:

• School admissions.
• Exclusions.
• How education is provided to disabled pupils. The content of the curriculum is not covered, but the way it is delivered is.
• Access to any facility, benefit or service. This is very wide and covers every aspect of school life, including extra-curricular activities, school trips, and school facilities such as libraries and sports facilities.

Who is disabled?

The definition of disability under the Equality Act is quite wide and is not dependent on a particular diagnosis.

A person is disabled if they have:

1. A physical or mental impairment, and
2. The impairment has a substantial and long term adverse effect on their ability to carry out day-to-day activities.

A ‘physical or mental impairment’ can include sensory impairments, medical conditions, learning disabilities, mental health conditions, autism, speech and language impairments, and more. There is no requirement for a formal diagnosis, though this is likely to help  as evidence of an impairment

‘Long-term’ means a year or more, and ‘substantial’ means more than minor or trivial. Normal day-to-day activities can be physical or tasks such as processing instructions.

There is government guidance on what counts as a disability under the act.

What must schools do?

Schools have a number of duties under the Equality Act. Some of these apply to individual disabled pupils and some are general planning duties.

Duties to individual pupils

Schools must:

• Not discriminate against disabled pupils – not treat them worse than non-disabled pupils.
• Make reasonable adjustments for disabled pupils – do things differently for these pupils where necessary.

There is more information below about this under types and examples of discrimination

General duties

Public Sector Equality Duty (PSED)

The PSED applies to all state funded schools, including Academies. This is a duty to eliminate discrimination, advance equality of opportunity and foster good relations between people who share a protected characteristic, such as disability, and those who don’t. Schools must have regard to PSED in everything they do, so disability issues should not be treated in a separate silo.

Accessibility plan (England and Wales only)

All schools, including independent schools, must publish an accessibility plan that sets out how they will improve access for disabled pupils in the following areas:

• Access to the curriculum.
• Improving the physical environment of the school.
• Access to information, for example by providing it in a range of different formats.

Local authorities in England and Wales have a similar duty to publish an accessibility strategy. This sets out how they plan to improve access in maintained schools in the area. In England, the accessibility strategy may be available on the local authority’s ‘local offer’ site.

Anticipatory adjustments

Schools should be looking ahead at how they can do things differently for disabled pupils if necessary. They don’t have to wait until a disabled pupil joins the school.

Types and examples of discrimination

Below we look at some types of discrimination, with brief examples. We go onto explain what you can do if you think your child is being discriminated against.

Direct discrimination

It is always unlawful to treat a pupil less favourably simply because the pupil is disabled.

Below are some examples of direct discrimination:

• A parent rings a school asking about admission for a child with cerebral palsy. The secretary says, “We don’t take disabled children.”
• A deaf young person is not allowed to take part in a workshop run by a visiting orchestra, as “Deaf children won’t benefit from music.”

There are no circumstances in which direct discrimination is lawful.

Indirect discrimination

This relates to a ‘provision, criterion or practice’ which:

1. Applies, or would apply, to non-disabled pupils
2. Puts, or would put, disabled pupils ‘at a particular disadvantage’
3. Puts, or would put, the individual child at that disadvantage, and
4. Is not a ‘proportionate means of achieving a legitimate aim’.

A provision, criterion or practice might be a written school policy or just the way the school generally does things. The most common instance of indirect discrimination is where schools have ‘blanket policies’ that apply to all pupils without exception.

For example: 

• A school will only allow pupils to go on a cultural trip abroad if they have more than 95 per cent attendance. A pupil with a long-term medical condition has missed a lot of school for health reasons and is told she cannot go.
• A school has a policy of healthy snacks only. A diabetic pupil is given a detention for eating a biscuit.

The school should look at allowing an exception to the policy in these particular cases.

Discrimination arising from disability

This is less favourable treatment:

1. ‘Because of something arising in consequence of a person’s disability’, and
2. That is not ‘a proportionate means of achieving a legitimate aim.’

Some examples of likely discrimination arising from disability:

• A pupil with absence seizures sometimes misses a chunk of what the teacher is saying. She is repeatedly kept in at playtime for being slow and not paying attention.
• A child with dyspraxia is told he can’t go to the afterschool football club as he can’t kick the ball straight. This is an all-ability club for fun. However, it would be justifiable if the school didn’t pick him for the school team as this would be a proportionate means of upholding sporting standards.

The school must know of the disability beforehand for it to be discrimination. And the school’s actions may be justified if they are a proportionate means – for example excluding a pupil with autism who has trashed a classroom – to achieve a legitimate aim – in this case, providing a safe and orderly learning environment.

However, the school’s actions are unlikely to be justified if the school has not looked at reasonable adjustments as a first resort.

Failure to make reasonable adjustments

The reasonable adjustments duty is the duty to take ‘such steps as are reasonable to avoid disadvantage’ for disabled pupils. It relates to:

• A provision, criterion or practice, for example policies or the way the school does things.
• A physical feature, for example making changes to the building (this does not apply to schools- but does apply to further education colleges and to other service providers).
• Auxiliary aids and services, for example equipment or help from another person.

Failure to make a reasonable adjustment for a disabled child would count as discrimination under the Equality Act.

In essence this means that schools do not have to treat disabled children exactly the same as all other children. A school must look at doing things differently if a disabled child is at a significant disadvantage. Reasonable adjustments need not be complicated or expensive.

Examples

Some examples of reasonable adjustments might be:

• Allowing extra time, rest breaks or a scribe in tests or exams.
• Giving a child a quiet place to go if they are getting overloaded.
• Providing equipment or extra help, for example the use of a laptop and tuition in touch typing.
• Giving a child with a bowel condition a toilet pass to use the staff toilets.
• Providing large print materials for a visually-impaired child.
• Sending homework by email for a child who has difficulty recording information clearly.

The law doesn’t define what is reasonable. When looking at making a reasonable adjustment, a school can take into account:

• Cost.
• Practicality.
• Effectiveness of the adjustment.
• Effect on other pupils.
• Health and safety considerations.
• The need to uphold academic, musical or sporting standards.

A large secondary school will be expected to do more than a small village primary. A school cannot charge parents for making reasonable adjustments.

Here’s a more detailed example:

• A primary school has a ‘forest school’ programme of outdoor learning activities including off-site visits to nature reserves. A wheelchair user finds it difficult to negotiate rough ground. The school has limited resources so it would not be a reasonable adjustment to buy an all-terrain wheelchair. They look instead at adapting some of the activities and trying to ensure that any trips are to accessible venues.

The reasonable adjustment duty is anticipatory. This means that schools should look ahead to what disabled pupils may need in the future.

• A primary school has a yearly residential trip for all year 6 pupils. The school decides to change the venue in the future to one that is more accessible and has a wider range of activities at different levels.

More about support in exams

Exam access arrangements

If your child has a special educational need or disability that puts them at a disadvantage for tests and exams, it may be possible for special arrangements to be made to level the playing field.

exam access arrangements

Taking matters further

If you feel your child has been discriminated against, it is always best to try to sort things out informally with the school first.

Make an appointment to talk to your child’s class teacher, head of year or the special educational needs coordinator (SENCO). Explain carefully how your child’s disability affects them in school and how they are being disadvantaged. It may be helpful to make practical suggestions as to how the school can put things right, for example:

• Making an apology to you or your child.
• Making a change to a school policy to allow flexibility for your child, for example not imposing automatic detentions.
• Allowing your child to take part in a trip or activity.
• Providing some additional help or equipment.
• Disability-awareness training for school staff.

If this doesn’t resolve the situation you can look at a formal approach. This might be:

A complaint to school

You should be able to find the school’s complaints procedure on the school website. It may have several stages. Commonly these are informal resolution, written complaint to the headteacher, written complaint to the governors. At the final stage you may be able to put your case in person to a panel of governors.

Making a legal claim

If the discrimination is serious or repeated you may want to consider making a legal claim.

In England, the First-tier Tribunal (Special Educational Needs and Disability) handles cases involving schools, both state-funded and independent. The tribunal does not, however, hear claims relating to admissions to state-funded schools as these are dealt with through the local appeal process.

The tribunal cannot award monetary compensation, but it can order things like an apology, staff training, extra tuition or activities, a change to the school’s policies, and reinstatement for permanently excluded pupils.

The County Court handles cases involving further education (FE) institutions and service providers, for example early years settings. The County Court can award compensation.

The situation in the other UK nations differs slightly and is explained in the table below, along with a summary of how England cases are dealt with.

The time limit for making a discrimination claim is six months from the alleged discriminatory act or from the last in a series of discriminatory acts.

The Equality Advisory and Support Service (EASS) may be able to help you decide on the best course of action in your case. EASS covers England, Wales and Scotland.

EHRC guidance

Equality and Human Rights Commission guidance:

• Technical guidance for schools – England
• Technical guidance for schools – Scotland
• What equality law means for you as an education provider – Wales
• Technical guidance on further and higher education

Related information

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