Equality and Human Rights Commission

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.

Type of School Responsible Body

• School managed by an education authority -The Education Authority
• Independent school - The proprietor*
• Self-governing school - The Board of Management
• Grant-Aided school** - The managers of the school

*Those responsible for the management of the school depending on the type of school.

** A grant-aided school is one that is receiving grants under section 73(c) or (d) of the Education (Scotland) Act 1980.

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.

If you and the body responsible for a school disagree about whether your child has a disability or not then ultimately the court can decide.

How can the DDA help my child?

It is against the law for schools to discriminate against your child for a reason related to his/her disability in:

• Admissions (including placing requests)
• Education and associated services, including: 
  • school trips
  • the curriculum
  • teaching and learning
  •  school sports
  • the serving of school meals

There are two aspects to discrimination.

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 of selection. In Scotland, education authority schools may only select pupils for admission if such arrangements have been approved by Scottish Ministers. Subject to the laws on sex and race discrimination, independent schools and self-governing schools may select on grounds of ability and aptitude.

Failure to take reasonable steps

A responsible body can also be accused of discriminating 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 placed 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 be taking notes during lessons 'like everyone else'.

How do the DDA duties differ from the rights of children with 'additional support for learning'?

The Education (Scotland) Act 1980 (as amended) states that: 'special educational needs', in relation to a child or young person, are needs caused by a learning difficulty which he has which calls for provision for special educational needs to be made for him" Section 1(5)(d).

Your child may be included within this definition and be defined as having a disability under the DDA. However, not all disabled children have special educational needs (SEN). For example, if your child has severe asthma, he or she may not be identified as having SEN, but may well be defined as having a disability under the DDA. Alternatively, your child could have SEN, but not come within the particular definition of "disability" used in the act.

For further information on SEN or the 'additional support for learning' framework, contact Enquire.

Can my child access auxiliary aids and services under the DDA?

No, the DDA does not require responsible bodies to provide 'auxiliary aids and services' such as sign language, interpreters or information in formats such as Braille or audiotape.

If your child has a disability and requires any auxiliary aids or services to facilitate their education they may be regarded as having SEN and therefore be covered under the SEN legislation and guidance. Provision should be available under the 'additional support for learning' framework which has superseded the SEN framework.

Strategies to improve accessibility

Responsible bodies are required to prepare and implement accessibility strategies to improve over time access to education for disabled pupils. This duty has been introduced by the Education (Disability Strategies and Pupils' Educational Records) (Scotland) Act.

These strategies should include:

• improving access to the curriculum
• improving the physical environment of the school to increase access
• improving communication with disabled pupils e.g. producing school information in a range of formats. This may include Braille, audiotape or large print.

Responsible bodies should make these strategies available for parents to see. They will also be sent to the Scottish Executive who will maintain an overview of progress being made throughout Scotland through accessibility strategies.

The strategies will also be monitored by Her Majesty's Inspectorate of Education in their routine inspections of schools and education authorities.

For more information about the Education (Disability Strategies and Pupils' Educational Records) (Scotland) Act 2002, please contact the Scottish Government.

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 types of disabilities.

Responsible bodies for schools do not have a duty under the DDA to make changes to the physical environment to increase access or to provide 'auxiliary aids and services'. These issues should be dealt with under the special educational needs legislation and guidance (the SEN framework) and the Education (Disability Strategies and Pupils' Educational Records) (Scotland) Act 2002 described above.

Responsible bodies 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 them and your child is discriminated against, the responsible body may be able to claim in its defence that it did not know about the disability. Responsible bodies are advised to ask parents if their child has a disability before he/she starts school.