Under the Equality Act schools are required to make ‘reasonable adjustments’ so that all children can access their facilities and services; yet parents often find themselves faced with an additional bill for such provision. We’ve asked SEN specialist Joshua Garrod and solicitor Douglas Silas to shed some light on the murky area of who foots the bill.
The Equality Act 2010 replaced a number of different pieces of discrimination legislation, including the Disability Discrimination Act 1995 (‘DDA’). It provides people with legal protection from discrimination in a variety of circumstances. Part 6, Chapter 1 of the Act addresses education specifically and talks about the protections offered to children in schools.
This part of the Act applies not only to maintained (state) schools, but also to independent placements, including academies or those offering alternative provision, as well as to both maintained and non-maintained special schools.
Under the Act, schools must not discriminate, harass or victimise a person seeking to be admitted as a pupil. This includes the terms on which a person is offered a place, or is not offered a place.
Schools must also ensure that no existing pupil is discriminated against in the manner in which education is provided, the way that pupils are able to access facilities/services, or through excluding a pupil or subjecting them to any other detriment.
With regard to disabled pupils in particular, in order to meet this duty, the ‘Responsible Body’ of a school (such as the Governing Body) must prepare, implement and review a written ‘Accessibility Plan’, after having regard to the resources required to implement the plan.
The Accessibility Plan is designed to do a number of things:
- To increase the extent to which disabled pupils can participate in the school's curriculum
- To improve the physical environment of the school in order to help disabled pupils to take advantage of education and benefits, facilities or services provided or offered by the school; and
- To improve the delivery to disabled pupils of information which is readily accessible to pupils who are not disabled
In addition, schools must take steps to ensure that disabled pupils receive the same quality of education as their peers. The school has a duty to make ‘Reasonable Adjustments’, where typical provision might put a disabled pupil at a ‘Substantial Disadvantage’.
What is reasonable?
An example of a ‘Reasonable Adjustment’ might simply be arranging for a student who uses a wheelchair to have classes on the ground floor of the building, or ensuring that a teacher faces a deaf student to enable them to lip-read.
The Act also includes a duty on the school to provide reasonable ‘Auxiliary Aids or Services’ if they will alleviate a ‘Substantial Disadvantage’ that the pupil may be facing because of his or her disability.
These aids may already be provided for in a child’s Education, Health & Care (EHC) plan or Statement of SEN but, in the case that they are not, or the pupil does not have an EHC plan or Statement, the school or Local Authority (LA) has a duty to provide them.
Examples of an auxiliary aid or service could be the provision of an interpreter or note-taker, producing documents in Braille, or the provision of assistive listening devices.
However it is still not guaranteed that an ‘Auxiliary Aid or Service’ will be provided by the LA or school, as the law only says that they must determine whether or not it is ‘reasonable’ for them to provide it.
If it is deemed unreasonable, even though it is determined to be necessary by the child’s parent, the cost of providing the aid or service may then fall to the child’s family.
The term ‘reasonable’ is also not explicitly defined in the Act, which leaves it up to the discretion of the school or LA to determine this. Some (but not all) of the factors that may influence a decision are:
- Financial resources of the school
- Cost of the aid or service
- Effectiveness of the aid
- Effect on other pupils
- Health and safety requirements
- Provisions already made by the SEN Framework
What is deemed to be a ‘Reasonable Adjustment’ may also shift depending on the circumstances of the case. In fact, despite the fact that the legal duty applies to all schools, regardless of whether they are publicly or privately funded, there can still be discrepancies in what is actually provided.
Joshua Garrod is an SEN Specialist and Douglas Silas is a solicitor at Douglas Silas Solicitors http://www.SpecialEducationalNeeds.co.uk