It is unlawful for an education provider to treat a student with a disability less favourably than other non-disabled students. A disability is a protected characteristic under the Equality Act 2010. Section 6 of the Equality Act 2010 defines a disability as a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out their normal day-to-day activities.
If you are a student who has been unfavourably treated and have a protected characteristic, a Disability Discrimination Claim may arise under the Equality Act 2010.
Disability Discrimination Claims can be made against LA maintained mainstream schools, LA maintained special schools, Academies, FE Institutions and Universities as well as independent schools.
The duty not to discriminate applies to all aspects of your education, not just to how you are treated within the classroom itself, but also extends to how you are treated during after school clubs, at sports fixtures, on educational trips and includes school facilities and equipment.
There are five categories of discrimination:
1. Discrimination arising from a disability. There are only limited circumstances in which discrimination arising from a disability might be justified.
2. Direct discrimination and indirect discrimination. Direct discrimination can never be justified. Indirect discrimination may be justified if there is a legitimate aim and it is a proportionate way of achieving the legitimate aim.
3. Failure to make reasonable adjustments which has the effect of placing you at a substantial disadvantage in comparison with students who are not disabled. Steps should have been taken by your educational provider to avoid the disadvantage. The substantial disadvantage must arise from: a provision, criterion or practice; a physical feature of the premises; the lack of an auxiliary aid.
4. Harassment. Where you may have been treated in a way that violates your dignity or is creating an intimidating, hostile, degrading, humiliating or offensive environment for you.
5. Victimisation. Where you have been treated detrimentally because of bringing proceedings under the Equality Act 2010 or giving evidence in connection with such proceedings or doing anything or making an allegation against your educational provider in connection with any proceedings under the Equality Act 2010.
The duty to make reasonable adjustments is anticipatory, this means reasonable adjustments must be made by your education provider before you have been placed at a substantial disadvantage.
Disability Discrimination Claims can be made to the SEND Tribunal. Claims must be filed within 6 months of the last incident, or, in the case of a continuing act of discrimination, within 6 months of the date of the last act of discrimination.
If you are a young person or you have parental responsibility for a child who is disabled who has been discriminated against, we can help you hold the educational provider to account.
SEN Legal were the legal representatives of the only First-tier Disability Discrimination case reported in full in the Law Reports, with costs against the school concerned being awarded in the sum of £86,162, which is believed to be the largest ever award by the SEND Tribunal.
We have advised on all manner of Disability Discrimination cases, some examples include:
Where a school decided it would not complete the Home School Book or discuss with the parents of a non-verbal child what happened during the school day.
Where a school failed to apply for access arrangements until shortly before the student’s GCSEs. Access arrangements should always be applied for much earlier, so they are the normal way of working in exams.
Where a vulnerable young girl with an Autistic Spectrum Disorder and very limited social understanding, was ultimately excluded and additionally blamed when boys took sexual advantage of her.
Where a University failed to differentiate work for a student.
Where a Head teacher of a maintained secondary school used the delegated SEN budget to redecorate.
Where a young boy with Dyslexia was discriminated against at an independent school.
Contact us for more information on how we can specifically help you with your case. We appreciate that resources are scarce and we will always advise on the best course of action to help achieve your aim.