Disability Discrimination
Part 4, Chapter 1 of the Disability Discrimination Act 1995, as amended, makes it unlawful for a school to discriminate against disabled pupils (including prospective pupils). This applies to education authority schools, independent schools and grant-aided schools.
Duty not to treat less favourably
The first type of discrimination is treating a disabled pupil less favourably. That is, where a school,
- for a reason relating to a pupil's disability;
- treats that pupil less favourable than it treats or would treat a person to whom reason did not apply; and
- the treatment is without justification.
It is important to note that the comparison is with persons to whom the reason does not apply and not with a non-disabled pupil (a significant difference).
Duty to take reasonable steps
This is the second type of discrimination. Schools have a duty to take reasonable steps to avoid substantial disadvantage to disabled pupils. This duty is described as an anticipatory duty because it applies to disabled pupils in general, rather than being restricted to an individual pupil complaining about discrimination. By the time a complaint is raised it may be too late to act to avoid the substantial disadvantage which may affect a particular disabled pupil.
This duty does not include the provision of auxiliary aids and services or the removal or alteration of physical features. What is left? Policies, practices, procedures etc. How a school makes use of the personnel, premises and resources available to it.
Reasonable steps
A school acts unlawfully if it fails to take a reasonable step and that failure is:
- to the detriment of a disabled pupil; and
- without justification.
"Substantial" disadvantage means more than minor or trivial. Minor inconvenience or annoyance may not be enough.
Reasonable steps - factors
The Code of Practice lists certain factors which will be relevant in deciding whether or not a step should be taken or not. These include:
- the need to maintain academic, musical, sporting or other standards;
- the cost of the step proposed;
- the financial resources available;
- the practicalities of the step proposed;
- the health and safety implications (if any); and
- the interests of other pupils.
Justification
There is no unlawful conduct where less favourable treatment or a failure to take reasonable steps is justified. Justification occurs in relation to admission to some schools where there is a permitted form of selection. Otherwise, justification can only be established where there is a material and substantial reason for the decision. "Material" means that there must be a clear connection between the reason for the treatment or failure (as given by the school at the time) and the circumstances of the case. It also has to be a substantial reason, i.e. more than minor or trivial.
A school cannot justify less favourable treatment if there is a reasonable step which could have been taken but wasn’t (unless it would have made no difference to the outcome of the case).
Enforcement
The Disability Conciliation Service is a statutory conciliation service which will handles disputes arising under the schools sections of the DDA to promote the settlement of disputes without recourse to the courts. Conciliation is made available locally around the country.
In Scotland, legal claims for disability discrimination in schools can only be brought in the Sheriff court. The time limit for bringing an action in court is usually six months. Compensation is not available.