The Disability Discrimination Act (DDA)
Since September 2002, the Disability Discrimination Act 1995 has been extended (by the Special Educational Needs and Disability Act 2001) to cover discrimination faced by disabled students in schools and colleges.
The provisions apply to all schools, including independent schools and special schools.
With thanks to David Ruebain, education and disability lawyer (England).
First, the definition of disability in the DDA (in other words, which students are covered) is not the same as the definition for SEN. In particular, the DDA covers only those who have 'a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out normal day to day activities'. This definition is considered in detail in guidance produced by the Disability Rights Commission. The DDA also covers those with:
- severe disfigurements
- impairments which are controlled or corrected by the use of medication, prostheses, and aid or otherwise
- progressive symptomatic conditions
- a history of impairment
- cancer, HIV or multiple sclerosis at the point of diagnosis.
However, the DDA does not cover addiction to or dependence on nicotine, tobacco or other non-prescribed drugs or substances; hay fever; or certain mental illnesses which have anti-social consequences. Accordingly, it might be possible for a student to have special educational needs, but not be disabled for the purposes of the DDA, and vice versa (although the majority of disabled students will also have special educational needs).
Protection from discrimination
A student who is disabled is protected from discrimination in two ways:
- They are entitled not to be treated less favourably than a non-disabled student for a reason relating to their disability without justification
- They are entitled to have reasonable adjustments made with respect to admission arrangements or in the provision of education and associated services, to prevent them being placed at a substantial disadvantage, unless the refusal to make those adjustments is 'justified'.
Such adjustments may be to policies, practices, or procedures of a school, but generally will not include adjusting premises (such as putting in ramps, lifts etc), nor will they usually include providing additional staff or equipment. (Although these kinds of adjustments are covered in other parts of the DDA, they are expressly excluded from the schools part of the DDA since it is generally intended that additional staff or equipment should be obtained through the SEN route and, at present, it would be too onerous on schools to have an obligation to undertake rebuilding.)
Discrimination is, however, permitted (in other words, lawful) if it is:
- in respect of a permitted form of selection, or
- where it is for reasons which are both material to the circumstances of the particular case and substantial. Guidance on this is available in a code of practice published by the Disability Rights Commission for schools.
Making provisions in schools
All schools must now publish an accessibility plan and, in addition, LAs must publish accessibility strategies. These strategies and plans are designed to show how the school or LA will:
increase the extent to which disabled pupils can participate in the school curriculum
- improve the physical environment of schools for the purposes of increasing the extent to which disabled pupils are able to take advantage of education and associated services
- improve the delivery to disabled pupils, within a reasonable time and in ways which are determined after taking account of their disabilities and any preferences expressed by them or their parents/carers, of information which is provided in writing to pupils who are not disabled.
A case of discrimination?
If a disabled student has been discriminated against, the parent may complain to either SENDIST or, exceptionally, to an independent appeal panel. Most discrimination claims will be brought to a tribunal, but if the complaint relates to the permanent exclusion of a disabled child from a maintained school, or the refusal to admit a disabled child without a statement to a maintained school, then the complaint must be brought before an independent appeal panel. If you're thinking of appealing, organisations such as IPSEA and The Child Law Advice Line or your LA can offer help and advice, and explain the sequence of procedures.
The procedures for complaining to a tribunal or independent appeal panel are similar to those for appealing in respect of SEN matters or admissions and exclusions generally. However, in the case of discrimination in schools only (as opposed to colleges or employment or service provision) compensation may not be ordered. Instead, tribunals and independent appeal panels may order a variety of remedies (assuming that they uphold the complaint of discrimination), including re-admission or admission to a school, an apology, staff training etc.
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