Education : disability discrimination (Scotland)

Introduction

This information sheet gives advice on disability discrimination in all types of schools, including those managed by local authorities and independent and grant-aided schools.

The law covering disability issues is complex and the terms used are sometimes vague. This information sheet attempts to explain the terms used in the law and give guidance about what they mean in practice.

The meaning of 'disability'

The Disability Discrimination Act (often referred to as the DDA) describes a disabled person as someone who has:

"a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities."

Does this description apply to your child? The following explanations of each of the terms may help you to decide.

Does he or she have a physical impairment?
This can include sensory difficulties such as visual or hearing impairments.

Does he or she have a mental impairment?
This can include:

• autism spectrum disorder (ASD)
• learning difficulties 
• dyslexia
• speech and language difficulties
• attention deficit hyperactivity disorder (ADHD).   

It does not matter if the impairment or condition is eased or improved by medical intervention (apart from spectacles and contact lenses).

Does the impairment have a substantial, adverse effect?
This means more than minor or trivial, but it may helpfully be thought of as meaning 'having some substance'.

Is the effect long-term?
This includes those who have an impairment that:

• has lasted 12 months or more
• is likely to last 12 months or more.

So while an ASD is a lifelong condition, impairments such as a broken leg - which  would be expected to heal in less than a year - would not be covered.

Does the impairment affect his or her normal day-to-day activities?
Activities that people carry out often and regularly such as:

• mobility (eg moving around; getting to/from school; moving about the school and/or going on school visits)
• manual dexterity (eg holding a pen, pencil or book; using tools in design and technology; playing a musical instrument; throwing and catching a ball)
• physical co-ordination (eg washing or dressing; taking part in games and PE)
• continence (eg adult support for toileting)
• ability to lift, carry or move everyday objects (eg carrying a full school bag or other fairly heavy items)
• using speech, hearing or eyesight (eg communicating with others or understanding what others are saying; hearing what the class teacher is saying; ability to see clearly (with spectacles/contact lenses where necessary), including any visual presentations in the classroom)
• memory or ability to concentrate, learn or understand (eg work in school including reading, writing, number work or understanding information)
• understanding the risk of physical danger inability to recognise danger (eg when jumping from a height, touching hot objects or crossing roads).

Since September 2002 it has been against the law for education authorities and schools to discriminate against pupils for a reason related to their disability.

The discrimination may be in any area of education, for example:

• admissions   
• exclusions
• school trips
• access to the curriculum
• teaching and learning
• school sports
• school meals.

In effect all aspects of a pupil's education are covered by the DDA.

The meaning of 'discrimination'

In education, unlawful discrimination against a disabled pupil can occur in two ways:

• by treating the disabled pupil or prospective pupil less favourably
• by failing to make reasonable adjustments to make sure that the disabled pupil or prospective pupil is not placed at a substantial disadvantage to a non-disabled person.

The terms 'less favourable treatment' and 'making reasonable adjustments' are explained in greater detail below.

Less favourable treatment

A school may be discriminating if it treats a disabled pupil less favourably than another for a reason related to his or her disability, and the treatment cannot be justified.

Examples of how a pupil may be treated less favourably might be if he or she has been refused admission to a school, excluded from school, or not allowed to go on a school trip because of his or her disability.

There are three tests to determine whether a child has been treated less favourably.

• Is the less favourable treatment for a reason that is related to the child's disability?
• Is it less favourable treatment than another pupil would get if the above reason does not apply to him or her?
• Is it less favourable treatment that cannot be justified?

If the answer to all three questions is yes, then it is likely to be unlawful discrimination.

Example
A pupil with an ASD and sensory difficulties becomes very anxious when the fire alarm goes off in school. He stands with his hands covering his ears and is unable to move. The teacher tells the pupil to leave the building, but the pupil is frozen to the spot. The teacher shouts at the pupil and the situation escalates to a point where the pupil lashes out at the teacher. The pupil is excluded from school for two days for assaulting the teacher.

This could be less favourable treatment as:

• The reason for the treatment (ie the exclusion) was for hitting the teacher. This was ultimately as a result of the pupil's disability (ie his autism and sensory difficulties).
• The exclusion was less favourable than the treatment another pupil to whom the reason didnt apply (ie a pupil had not hit a teacher) would get.

Justifying less favourable treatment

Even though a pupil may have been treated less favourably than other pupils, the discrimination will not be illegal if it was justified in the circumstances. The school would need to show that there was a particular reason why they treated the disabled child in that way, and that the reason or reasons were significant enough to justify discrimination.

Example
If we take the first example above, the school may say that the less favourable treatment in this case was justified to keep order and discipline in the school and that the incident (hitting the teacher) was significant enough to justify exclusion.

Another way that less favourable treatment may be justified is where a school operates a permitted form of selection for admission purposes. For example:

• some local authority schools may select pupils for admission if the arrangements are approved by the Scottish Ministers
• specialist schools may give priority to pupils who show a particular talent for the subject in which the school specialises
• independent schools may select on grounds of aptitude and ability.

Reasonable adjustments

Failure to make reasonable adjustments to make sure that disabled and non-disabled pupils have equal access in admission arrangements and to education services is unlawful. The reasonable adjustments duty requires schools to:

• think ahead
• anticipate the barriers that disabled pupils may face
• remove or minimise the barriers before a disabled pupil is placed at a substantial disadvantage. 

Reasonable adjustments may need to be made in admissions and, in fact, every aspect of school life.  

Example
Returning to the example where the boy with an ASD became anxious when the fire alarm sounded, there may have been reasonable adjustments that the school could have made to prevent the incident happening in the first place.

For example, staff at the school could have been trained about ASD, in strategies to avoid difficulties and how to overcome difficulties if they arise. The pupil could have been given training for social situations and strategies for coping when the fire alarm is raised.

As with less favourable treatment, there are three tests to be met before the reasonable adjustments discrimination may apply.

• Has the school failed to make reasonable adjustments?
• As a consequence of this, has the disabled pupil been placed at a substantial disadvantage in comparison with his or her non-disabled peers?
• Is it a failure that cannot be justified?

If the answer to these questions is yes, then it is likely to be unlawful discrimination.

Early years

All providers of early years services are covered by the DDA. They have a duty not to discriminate against disabled children in both the education and the day care or other services that they provide.

Responsible bodies

The law covering disability discrimination talks about responsible bodies that have a legal duty to make sure that pupils, or prospective pupils, are not discriminated against. The responsible body for each kind of school is as follows.

Type of school                     Responsible body
Local authority school           Education authority
Independent school              School's owner
Grant-aided school                School's managers

In general it is the governing body of a school that is responsible for making sure that disabled pupils in the school are not discriminated against.

The governing body needs to make sure that everyone in the school staff or volunteers is aware of the rights owed to disabled pupils and how they can avoid discriminating against disabled pupils.

This means that in the classroom, the class teacher is responsible. On a school trip the responsibility would fall to the member of staff planning the trip. Auxiliary staff have a responsibility at lunch and break times and those with curriculum responsibilities would have responsibility in their particular area of curriculum. The head teacher of the school has responsibility across the whole school.

Exceptions

The DDA states that in fulfilling their legal duties to make reasonable adjustments under the Act, responsible bodies do not have to:

• provide auxiliary aids or services
• alter or remove physical features of the school.

However there are other laws which may mean that a responsible body has to do or provide these things. For further details please see the section 'Other disability duties'. You can also telephone our Advocacy for Education Service on 0845 070 4002.

Informing the school and confidentiality

The DDA says that if a responsible body treats a pupil less favourably or fails to make reasonable adjustments, it is not discrimination if, at the time, they did not know and could not reasonably be expected to know that the pupil was disabled.

Schools therefore need to know that a pupil is disabled and the nature of the pupil's disability. Although the reasonable adjustments duty applies generally, the school will need to know how to apply any specific arrangements.

If a school has not been told about a child's disability and a claim is made against the responsible body for disability discrimination, they may be able to defend their actions or inaction, because they did not know.

Parents, or the pupil, can ask the school to keep the nature or existence of the disability confidential. Such a request may limit what the school can do by way of making reasonable adjustments and it may be necessary to explore alternative ways of minimising any disadvantage to the pupil.

Examinations

From September 2007 it is unlawful for general qualification bodies, such as the Scottish Qualifications Authority (SQA), to discriminate against students taking exams such as Standard Grades or Highers, etc. There is a duty to make reasonable adjustments, which may involve, for example, allowing extra time to sit an exam or allowing the use of a reader or a scribe.

The duty to make reasonable adjustments does not apply to competence standards. A competence standard is any standard applied by a general qualification body to determine whether a person has a particular level of competence or skill.

Other disability duties

As a result of another law, the Education (Disability Strategies and Pupils Educational Records) (Scotland) Act 2002, education authorities are required to improve access to school education for disabled pupils over time.

The strategies and plans must show how access to local schools will be increased by:

• increasing access to the curriculum for disabled pupils
• making improvements to the physical environment of the school to increase access to education and associated services
• making written information accessible in a range of different ways for disabled pupils, where it is provided in writing for pupils who are not disabled.

Additional duties in relation to disability discrimination were introduced in 2005 and all public authorities now have a general duty to promote disability equality. These duties will not bring new rights for disabled people, but they will mean that authorities must be more active in ensuring equality for disabled people.

Authorities need to:

• promote equality of opportunity between disabled people and other people
• eliminate discrimination that is unlawful under the DDA
• eliminate harassment of disabled people that is related to their disability
• promote positive attitudes towards disabled people
• encourage participation by disabled people in public life
• take steps to meet disabled peoples needs, even if this requires more favourable treatment.

Education authorities and grant-aided schools also had a specific duty to prepare and publish a disability equality scheme by 4 December 2006.  These schemes last for three years and must show how authorities and grant-aided schools intend to promote disability equality.

You should be able to ask a responsible body for copies of their accessibility strategy and/or disability equality scheme.

Disability and additional support needs

In November 2005, the Education (Additional Support for Learning) (Scotland) Act 2004 came into force in Scotland. This Act replaced much of the existing law on special educational needs.

According to the Act, if a child needs support with their education that is more or different to what is being generally provided in mainstream schools and pre-schools they have additional support needs.

Some disabled pupils may also have additional support needs. Similarly a child may have additional support needs, but not be disabled according to the DDA.

The disability discrimination duty is not intended to replace provision that should be made through the Additional Support for Learning process.

The disability discrimination duties provide protection from discrimination and improvements to increase access to education over time. The Additional Support for Learning framework provides auxiliary aids and services, such as teaching assistants, visual aids, etc that a disabled pupil may need. Together the duties are designed to make sure disabled pupils can access education and be included in every aspect of school life. 

What parents can do

If you as a parent believe your child has been discriminated against you can:

• ask to meet with the head teacher to discuss the situation
• ask to see, and then follow, the school's written complaints procedure
• talk to the responsible body
• contact the Equality and Human Rights Commission (EHRC) on 08456 045 510
• use the EHRC's education casework service, where appropriate
• use the EHRC's conciliation service (this involves the disabled person or their parent or carer, and the responsible body coming together with an independent conciliator to try and resolve the issue)
• make a claim for unlawful discrimination by taking legal action against the responsible body.

There may also be other action that you can take depending on your child's circumstances. For example, if your child has additional support needs there are other actions that you may be able to take if you have concerns about your childs education. 

Further help for parents trying to obtain an appropriate education for their child is available from our Advocacy for Education Service on 0845 070 4002.

Remember, you know your child better than anyone. If you have any concerns about your child's education then you should talk to the school or your education authority. If this doesnt resolve the issue there is other action you can take which the Advocacy for Education Service may be able to help you with.

Useful documents and reading

Disability Rights Commission. A guide for parents: part 4 of the Disability Discrimination Act 1995 (Scotland).

Disability Rights Commission (2002). Code of practice for schools. Disability Discrimination Act 1995: part 4.

Disability Rights Commission. Accompanying guidance for the DRCs code of practice for schools (Scotland).

Available from:
Equality and Human Rights Commission
Optima Building
58 Robertson Street
Glasgow G2 8DU
Tel: 08456 045 510
Website: www.equalityhumanrights.com

Scottish Qualifications Authority (2005). A guide for candidates. Arrangements for candidates with disabilities and/or additional support needs in examinations and assessments.

Available from:
Scottish Qualifications Authority (SQA)
Hanover House
24 Douglas Street
Glasgow G2 7NQ
Tel: 0845 279 1000
Email: customer@sqa.org.uk
Website: www.sqa.org.uk
 
For general help and information please contact:

Autism Helpline
The National Autistic Society's Autism Helpline provides impartial, confidential information, advice and support for people with autism spectrum disorders, their families, professionals, researchers and students.

• Tel: 0845 070 4004 (open Monday-Friday, 10am-4pm)
• Email: autismhelpline@nas.org.uk

You can also find a wealth of information on our website www.autism.org.uk

Last updated: August 2009
© The National Autistic Society 2008
NAS Scotland is part of the UK's leading charity for people affected by autism.