Educational provision for pupils with special educational needs and disabilities

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by David Smellie, Partner at Farrer & Co
Educational

The Equality Act 2010 has made significant changes to the law on discrimination as it affects pupils with special educational needs and disabilities (SEND), and in particular the extension of duties on schools to include the provision of auxiliary aids and services, which came into place on 1 September 2012. Further guidance can be found in the Equality and Human Rights Commission (EHRC) Code of Practice on ‘Reasonable Adjustments for Disabled Pupils – Auxiliary Aids Technical Guidance’: www.equalityhumanrights.com/en/publication-download/reasonable-adjustments-disabled-pupils

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Although securing support for pupils with SEND via an EHC (Education, Health and Care) Plan (formerly a Statement) remains an enormous challenge for many families, the intention of legislation over recent years has been to make schools much more welcoming and accessible to children with SEND. As a matter of public policy this is clearly a good thing and as a matter of practice there is no doubt that schools have made huge progress – which is not to say they could not do even more in future. Parents should always seek to work with (not against) schools in addressing their child’s needs. In my experience, there is little a school finds more unhelpful than parents not being transparent about their child’s needs. In the end, everyone is united in seeking to ensure the child’s needs are met and their best interests are promoted.

In this article I have set out a summary of the law relating to educational provision for pupils with SEND. For more information, go to: www.gov.uk/topic/schools-colleges-childrens-services/special-educational-needs-disabilities

Disability

The definition of disability for pupils is the same as for disability discrimination in employment. In brief, a pupil with SEND is someone who has a physical or mental impairment which has a substantial, long-term and adverse effect on his or her ability to carry out normal day-to-day activities. (In employment this definition has been the subject of voluminous litigation.)  

Disabilities may include epilepsy, learning and behavioural difficulties, as well as the ‘traditionally’ recognised disabilities. There are, however, specific exclusions for substance dependency, seasonal allergies, and tendencies to steal, start fires or physically/sexually abuse.

Reasonable adjustments

As for employees, schools have an obligation to make reasonable adjustments for disabled pupils.

Schools are not required to remove or alter physical features (such as historic buildings) in order to comply. Instead, schools have a duty to plan better access for pupils with disabilities generally, including in relation to the physical environment of the school.

Scope

The Equality Act requires schools to make reasonable adjustments in connection with:

Triggers

The duty to make reasonable adjustments is only triggered when a pupil suffers a ‘substantial disadvantage’ which would include: having to put in extra time/effort to do something, inconvenience, indignity, discomfort, loss of opportunity and/or diminished progress.

What is an ‘auxiliary aid or service’?

The EHRC Guidance states that an auxiliary aid is ‘anything which constitutes additional support or assistance to a disabled pupil’ and gives the following examples:

Consequences

The inclusion of ‘auxiliary aids and services’ within the duty to make reasonable adjustments for pupils with SEND has clear consequences for independent schools. One obvious area is the provision of learning support for pupils with special educational needs, which is sometimes subject to an additional fee, in much the same way as music lessons.  Essentially, if a pupil with SEND is ‘disabled’ for the purposes of the Act and the support provided for his or her SEND is an ‘auxiliary aid or service’, the school is not permitted to charge for the learning support if it is a reasonable adjustment.

What is a ‘reasonable adjustment’?

There are no hard and fast rules about what constitutes a reasonable adjustment and the decision ultimately rests with the First Tier Tribunal (Special Educational Needs and Disability) (formerly the Special Educational Needs and Disability in Schools Tribunal or ‘SENDIST’). Sometimes adjustments will be suggested by external advisors such as the child’s doctor or an educational psychologist. In other cases, parents may request a change on behalf of their child. Schools should also themselves consider whether there is an adjustment that might overcome a substantial disadvantage suffered by a pupil.

Once the potential adjustment has been identified, the school has to decide whether or not it is reasonable taking into account the following factors set out in the EHRC guidelines:

Failure to make a reasonable adjustment cannot be justified, whereas under the old law it could be. The only question therefore is whether the adjustment is reasonable. Schools are not expected to make adjustments that are not reasonable.

In addition to having a duty to consider reasonable adjustments for particular individual pupils with SEND, schools also have to consider potential adjustments which may be needed for pupils with SEND generally as it is likely that any school will have a pupil with SEND at some point. However, schools are not obliged to anticipate and make adjustments for every imaginable disability and need only consider general reasonable adjustments, such as being prepared to introduce large- font exam papers for pupils with a visual impairment even though there are no such pupils currently admitted to the school. Such a strategic and wider view of the school’s approach to planning for pupils with SEND links closely with its planning duties.

Exceptions

Schools are:

Claims of disability discrimination

Parents of a child (note not the child him or herself) can bring a claim of disability discrimination against a school. There is a time limit of six months from the date when the parents think the discrimination occurred. Such claims are heard by the First Tier Tribunal (Special Educational Needs and Disability).

If the Tribunal upholds a claim of unlawful discrimination it will not be able to award financial compensation. It could order any other remedy, such as:

Planning duties

Schedule 10 of the Equality Act 2010 sets out the accessibility arrangements schools must implement for pupils with SEND. These are also known as schools’ ‘planning duties’. An independent school is obliged to draw up accessibility plans to improve access to education over time. Such plans should concentrate on three specific areas:

Independent schools are required to prepare these plans in writing, and implement and review them as necessary. Accessibility plans are subject to review as part of an Ofsted inspection.


Examples of reasonable and unreasonable adjustments

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