More information for parents in England and Wales

New law in force

The Equality Act came into force on 1 October 2010. Some of the information on this page may be out of date.

Since September 2002, if your child has a disability and has been discriminated against in education, you may be able to challenge this under the Disability Discrimination Act (DDA).

Please also note that in addition to the legislation about discrimination in schools, there is separate legislation covering special educational needs and improving accessibility.

The law

The "responsible body" for your child's school is ultimately responsible in law for meeting the new duties and may be different depending on which school your child attends.

The list below gives a type of school, followed by the responsible body for that type of school.

  • Maintained school - The governing body, in general
  • Pupil referral unit -  The local education authority
  • Maintained nursery - The local education authority
  • Independent school - The proprietor
  • Special school that is not maintained by a local education authority - The proprietor

Does my child have rights under the DDA?

The DDA defines disability as 'a physical or mental impairment, which has a substantial and long-term adverse affect on a person's ability to perform normal day-to-day activities'. For example, if your child has problems with mobility, seeing or hearing, learning disabilities, mental health problems, epilepsy, Aids, asthma, diabetes or a progressive condition such as multiple sclerosis, then he or she may be covered under the DDA.

Less favourable treatment

A school may be discriminating if it treats a child "less favourably" for a reason related to his/her disability, and it cannot justify that treatment.

For example:

  • Refusing your child's application to go to the school because of his/her disability
  • Refusing to let your child go on a school trip because he has diabetes.

Justifying less favourable treatment

In some cases, the school may be able to justify treating your child 'less favourably' if it can show that it did so for a "material and substantial" reason. This means that the reason must relate to your child's particular case and be significant enough to justify discrimination.

Less favourable treatment may also be justified if it is the result of a permitted form of selection.

Failure to take reasonable steps

The school can also be accused of discrimination if it does not take 'reasonable steps' to ensure your child is not at a substantial disadvantage compared to the other pupils at the school.

For example:

  • a secondary school fails to make the arrangements necessary for your child to be able to sit public exams
  • a deaf pupil who lip-reads is at a substantial disadvantage because teachers continue speaking while facing away from him to write on the board
  • a pupil with dyslexia is told she cannot have her teacher's lesson notes, and that she should take notes during lessons 'like everyone else'.

How does this differ from the rights of children with 'special educational needs'?

The Educational Act 1996 says 'a child has special educational needs if he or she has a learning difficulty which calls for special educational provision'. However not all disabled children have special educational needs. For example, if your child has severe asthma, he/she may not have special educational needs, but may have a disability under the DDA.

The DDA does not require schools to provide 'auxiliary aids and services' such as sign language, interpreters or information formats such as Braille or audiotape. These can be provided through the Special Educational Needs (SEN) Framework, which individually assesses your child's special educational needs.

The former DfES issued guidance that schools have a duty under the DDA to make reasonable adjustments for disabled parents. For example, by providing interpreters at parents' evenings.

Making access to school buildings and the curriculum easier for disabled children

Local Education Authorities (LEAs) and schools will also have new duties that mean they must gradually implement plans to improve access for disabled children. These plans should include:

  • improvements in access to the curriculum
  • physical improvements to increase access to the school buildings
  • improvements in information in a range of formats for disabled children. This may include Braille, audiotape or large print formats.

Schools should make these plans available to parents.

The law in practice

Schools will be expected to take 'reasonable steps' to meet the needs of disabled children who might become pupils. So schools should think about the broad range of needs of pupils with different disabilities. However, this does not include making changes to school buildings to make them accessible, or providing specialist equipment or support. Both these areas are dealt with via different routes - the new planning duty for schools and LEAs and the Special Educational Needs Framework respectively.

Schools should regularly review their policies, practices and procedures to ensure that disabled children are not at a disadvantage because of their disability.

Should I tell the school about my child's disability?

Yes, it may be the best thing to do. If you decide not to tell, and your child is discriminated against, the school may be able to claim in its defence that it did not know about the disability. Schools are advised to ask if your child has a disability when he/she starts school.

What should I do if I think my child has been discriminated against?

Your first point of contact if you feel your child has been discriminated against in school should be the head teacher. If a discussion with the head teacher does not resolve the issue, the school and the education authority should have complaints procedures that you can follow. If not, you may wish to contact the Helpline.

The Helpline should be able to provide you with information and advice at any point in this process.

Special Educational Needs and Disability Tribunal

You may be able to take your child's dispute further than the DRC Casework and Conciliation Services and claim for unlawful discrimination. In England and Wales, most claims of disability discrimination are heard by the Special Education Needs and Disability Tribunals (SENDIST). But claims against maintained schools of discrimination in admissions and exclusions are heard by admission appeal panels and exclusion appeal panels.

You need to make the claim to SENDIST within six months of the date when the alleged discrimination took place. If your claim is referred to conciliation, you have another two months to do so.

If your claim is successful, SENDIST can order the school to use any 'reasonable' remedy, except financial compensation. For example, SENDIST might order the school to arrange disability training for staff or to change a policy or procedure.

SENDIST has produced a leaflet detailing how to make a claim.

 

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