Schools have had a duty to make reasonable adjustments for disabled pupils since amendments to the Disability Discrimination Act 1995 came into force in 2001. These duties were later expanded to include “auxiliary aids and services”. The phrase “reasonable adjustments” is fairly well known by now, but prompts the question – “what is reasonable?” and specifically, what might be regarded as reasonable in the particular circumstances of a global pandemic crisis.
Overview of the legal framework
Part 6, Chapter 1 of the Equality Act 2010 is the part of the Act which applies to schools. It applies to all schools in Scotland, i.e. public schools (those managed by a local authority); independent schools; and grant-aided schools (those receiving specific direct Scottish Government funding).
The legal duties rest with the responsible body for the school. In the case of public schools, this is the local authority as a whole – an important point when the discussion turns to funding and resources. For independent or grant-aided schools, the managing body (e.g. a board of trustees or SCIO) is the responsible body.
The Equality Act 2010 applies across all nine “protected characteristics”, but there are two types of discrimination which only apply in relation to disability. These are the reasonable adjustments duty (Section 20) and discrimination arising from disability (Section 15).
In the case of disabled pupils and schools, it is only the first and third requirements of the reasonable adjustments duty which applies.
The first requirement arises where a “provision, criterion or practice” (PCP) places a disabled person at a substantial disadvantage. The requirement is to take reasonable steps to avoid that disadvantage. The EHRC’s Technical Guidance for Schools in Scotland gives the example of a school policy forbidding the use of external USB devices with school computers. In the example the school amends the policy so that a disabled pupil can be given a login that will allow him to attach an adapted keyboard in class. (para 6.9)
The third requirement arises where, without an “auxiliary aid or service,” a disabled person would be at a substantial disadvantage. The requirement is to take reasonable steps to provide the auxiliary aid or service in question. The Technical Guidance gives the example of a school providing a coloured plastic overlay sheet for a pupil with dyslexia.
The second requirement concerns substantial disadvantage which may arise because of a physical feature. The schools duties do not include a requirement to remove or alter physical features of the school for disabled pupils. However, there is a planning duty contained in the Education (Disability Strategies and Pupils’ Educational Records) (Scotland) Act 2002 which requires responsible bodies for schools to set out their plans to improve access (including physical access) to the school, on a three year cycle.
Discrimination arising from disability
This type of discrimination occurs where a disabled pupil has been treated unfavourably, because of something “arising in consequence of” pupil’s disability unless that treatment is a “proportionate means of achieving a legitimate aim”.
Unfavourable treatment is a fairly broad category and (unlike other types of discrimination) does not require a direct comparison. That is, there is no need to find someone who has been treated more favourably than the disabled pupil.
Recent cases at the Tribunal have dealt with exclusion from school, the use of physical restraint and a refusal to allow an additional year at school as unfavourable treatment.
In cases where the unfavourable treatment is admitted or established, the responsible body may argue that the treatment was not unlawful as it was a proportionate means of achieving a legitimate goal. Often the aim pursued is self-evidently legitimate, and the question is then whether the treatment in question was a proportionate means of pursuing that goal.
The Technical Guidance gives an example (at para 5.47) of a pupil excluded from school meals because she found queueing distressing. There may be a legitimate goal in this case, but if there are less restrictive means of achieving that goal (e.g. could the pupil be allowed to go straight to the head of the queue?) then the responsible body will struggle to show that the treatment is justified.
Overlap with additional support needs framework
The Equality Act 2010 is not the only piece of legislation which may apply, as disabled pupils may also have “additional support needs” in terms of Section 1 of the Education (Additional Support for Learning) (Scotland) Act 2004. There are several areas in which there is an overlap between these two legal frameworks.
It is worth noting, for example, that neither the definition of additional support needs, nor the definition of disability require a formal diagnosis. Both Acts are more focused on the day to day experience of the individual pupil. Indeed, the definition of additional support needs specifically includes pupils who require additional support “for whatever reason”.
The First-tier Tribunal for Scotland’s Health and Education Chamber has jurisdiction for both types of case, and can join cases together where this is appropriate. For example, in a case involving support for a disabled pupil to access an after school guitar club, the Tribunal considered the matter as a failure to comply with the child’s CSP and a reasonable adjustments case at the same time (cf. “Landmark victory for disabled pupil”, Daily Record 19 June 2013)
Issues arising during the Covid-19 pandemic
Questions of reasonable adjustments and disability discrimination arise in school even when there is no global pandemic to complicate matters. However, there have been some specific issues arising which relate directly to the Covid-19 pandemic and the measures taken in response.
- Some auxiliary services which required close contact with staff were restricted or ceased altogether (e.g. personal care needs, communication support needs).
- Some auxiliary aids / assistive equipment which required handling (and therefore cleaning) were removed, or were available only on a restricted basis.
- There was not consistent application of guidance on which children with additional support needs or disabilities could have access to learning hubs during periods of school closure. Disagreements arose as to who was regarded as “vulnerable”.
- Some pupils required reasonable adjustments in order to access online learning.
- Legal authority for the closure of schools – Educational Continuity Directions – was not in place at first. The directions disapplied some of the ASL legislation, but only in a limited fashion.
- There are ongoing issues relating to pupils who have missed education / transition planning, and reasonable adjustments may be required for disabled pupils.
- Some disabled pupils found that access to online learning suited them well, and the return to in person lessons has been difficult, or impossible. Reasonable adjustments may be required in terms of delivery of the curriculum in new and innovative ways.
Recent Tribunal cases
During the pandemic the Tribunal, after a short period in which only urgent cases were progressed, has adapted quickly and well to online hearings and electronic case papers. There is no current backlog and cases (including disability discrimination cases) continue to be heard and determined.
Over the last academic year (2020-21) the Tribunal has considered disability discrimination cases which have covered a wide range of topics including: differentiation of the curriculum, subject choices in the senior secondary stages, exclusion from school, requests for additional time at school, specific strategies for addressing dyslexia, and the use of physical restraint. Few (if any) were directly related to the pandemic, but that is the context in which they took place. To the extent that it was considered, it is reassuring to note one Tribunal’s comments in relation to transition planning:
“the COVID-19 pandemic does not remove the obligations of the responsible body to comply with the transition regulations.”