WHAT ARE REASONABLE ADJUSTMENTS?
The guidance for schools around reasonable adjustments is found in the Equality Act 2010.
The DfE published a pdf guide (DFE-00296-2013) which can be downloaded from their website for free. Or you can buy a bound version from my Amazon store. Their most recent version was published in May 2014.
In October 2010, the Equalities Act replaced 6 existing equality legislations including the Race Relations Act, Disability Discrimination Act and Sex Discrimination Act.
The guide produced by the DfE is non-statutory (they don’t have to follow the advice given in there) but they do need to pay due regard to the Equalities Act, not doing so would leave them open to legal action.
Under the Equalities Act, disabilities are treated differently. The law only applies in one direction. This means that the disabled individual is protected, but not people who are not disabled. This allows establishments to treat a disabled individual more favourably than a non-disabled one and in many cases are required to do so, by making reasonable adjustments to put them on a more level footing with individuals without disabilities.
It can be considered discrimination because of a disability if, for example, a child who has a skin conditions which means they cannot wear nylon is not allowed to wear cotton trousers as part of the uniform.
Bullying motivated by prejudice is not within the scope of the Act. Schools have to deal with it ensuring that anything prejudice-motivated is taken seriously and dealt with equally and firmly. The DfE published separate guidance on this and I’ll summarise in another blog post.
The Disability Discrimination Act listed activities that a person had to demonstrate they could not do in order to be classed as disabled. The Equalities Act removed this need, making it easier to define someone as having a disability.
Where an individual has a ‘physical or mental impairment which has substantial and long-term adverse effect on the person’s ability to carry out normal day to day activities.’ Some specified medical conditions (HIV, MS and Cancer) are all considered disabilities regardless of their effect. Long-term means at least 12-months.
The failure to make a reasonable adjustment can no longer be defended, the fact that it must be reasonable provides the necessary test.
From 2013 Schools and LA have a duty to provide auxiliary aids and services as part of the reasonable adjustments where these are not supplied via Special Educational Needs (SEN) or from other sources.
A disabled pupil cannot be turned away from a school because of their disability. They cannot be treated unfavourably.
Should a teacher treat a child differently (unfavourably) because of their disability then this would be harassment. An example would be a student with ADHD who is struggling to concentrate because of distractions in the room, being shouted at or put in a detention. Or a student with hypermobility who is unable to produce legible work at speed being penalized for untidy work or not finishing.
So what does REASONABLE ADJUSTMENTS mean?
- Where something a school does places a disabled child at a disadvantage compared to other pupils then the school must take reasonable steps to try and avoid that disadvantage.
(This doesn’t mean ‘fixing’ it so a child always succeeds or wins, but more that they start on an equal footing with their barriers removed.)
- Schools are expected to provide an auxiliary aid or service for a disabled pupil when it would be reasonable to do so and if such an aid would alleviate any substantial disadvantage that the pupil faces in comparison to non-disabled pupils.
(This was a change from 2012 and applies where the auxiliary aids are not provided as part of their SEN or and EHCP.)
As usual this is where things get woolly. You cannot make the assumption that because a pupil needs an auxiliary aid (not accommodated in SEN provision) that the school or the LA will make it available. All decisions are dependent on the individual case and there can be no blanket ‘yes/no’ responses.
An example would be the provision of a radio transmitter for a hearing impaired/deaf student to access lesson. As these are very expensive, it would be unreasonable to expect a school to provide the equipment, however, where the hearing-impaired team exists in the LA they could provide such equipment. A similar scenario would exist for a visually impaired/blind student who wanted to use CCTV or specialist magnifiers.
Auxiliary aids also covers services.
The key thing to note, is that if the child needs the item for all aspects of their life (for example hearing aids) then it is unreasonable to expect the school to provide these.
Schools are expected to predict the future. They do not have to predict and put in place reasonable adjustments for every feasible disability, but general adjustments and common needs should be catered for.
The school is required (when considering reasonableness): financial and other resources required for the adjustment, its effectiveness, its effect on other pupils, health and safety obligations. Cost is the major driver and whilst a large school could be expected to provide specialised IT resources, it would not be reasonable to expect a small rural primary school to do the same.
Ironically, though, the most effective and practical adjustments cost very little. A revision of a school policy to accommodate a uniform change, or clear signage around the school.
Where the adjustment would have a detrimental effect on other pupils it is no longer reasonable. For example, a Geography field trip involving hiking up a mountain and through a shallow river would not be appropriate for a child in a wheelchair.
PUBLIC SECTOR EQUALITY DUTY
The PSED came into effect in 2011. It applies to all public bodies including schools and academies. The duty had three main elements:
- Eliminate discrimination and other conduct prohibited by the Act
- Advance equality of opportunity between people who share a protected characteristic and those who do not share it
- Foster good relations across all characteristics
What this means is that schools must be aware of the duty to have “due regard” when making decisions or taking actions. They must assess whether it has particular implications for people with protected characteristics.
WHEN THE EQUALITIES ACT IS NOT FOLLOWED
Proceedings under the Act are bought to the county court under the pupil’s name. They have to be bought within 6 months of the offence taking place. An appropriate remedy may include the award of damages.
Specialist tribunals with experience and knowledge of disability issues hear cases of contravention of educational provision on the grounds of disability. This is called a first-tier tribunal. These claims or harassment or discrimination are bought by the parent on behalf of the child. The 6-month rule still applies. An appropriate remedy will address the issues raised, but the tribunal does not award payments of compensation.