Understanding Schools and Disability Discrimination: Key Legislation and Code of Practice

1. Schools and DisabilityJackie Jackson-SmithProvision Development Officer, SENaPSChris PercivalTeam Manager, Statutory Assessment Service ABC

2. Through information sharing and group discussion provide participants with the opportunity to: reflect on the definition of and issues relating to discrimination develop a clear overview of the Code of Practice and it’s implications for schools understand LEA and school access planning responsibilities and processes Objectives ABC

3. Part 1 Overview of the legislation and related guidance Disability discrimination - what is it? The Duties- what is covered and who is responsible Case studies Exceptions Part 2 LEA and school planning responsibilities Access audits Redress and conciliation Programme ABC

4. The Disability Act 1995 (as amended by the SEN and Disability Act 2001) Schools Disability Code of Practice [Disability Rights Commission] Accessible Schools: Planning to increase access to schools for disabled pupils [DfES] Key documents ABC

5. Related documents ABC

6. This Code of Practice is being issued by the Disability Rights Commission under the provisions of the DDA’95 and at the request of the Secretary of State for Education and Skills The purpose of the Code is to give practical guidance to schools as to: what constitutes discrimination and how they can avoid discriminating against disabled pupils and prospective pupils Schools Disability Code of Practice ABC

7. As from 1 September 2002 it is unlawful for schools to discriminate, without justification, against disabled pupils Discrimination embraces two core elements treating a disabled pupil less favourably for a reason relating to his/her disability failing to comply with the duty to make ‘reasonable adjustments’ Duty not to discriminate ABC

8. The twin duties - not to discriminate and to make reasonable adjustments - apply to admissions education and associated services - i.e. curriculum, teaching and learning, classroom organisation, time-tabling, pupil groupings, homework, sports, breaks and lunchtimes, exam arrangements, school clubs, school trips etc., etc. Exclusions Reasonable adjustment duty is anticipatory “… duty owed to disabled children in general…not waiting until a disabled child seeks admission to the school …” The extent of the duties ABC

9. A disabled person is someone who has … “a physical or mental impairment which has substantial and long term adverse effect on hisor her ability to carry out normal day to day activities” The effect must be substantial (more than minor or trivial) long term (lasting a year or more) adverse ……….. What is disability . . . ? ABC

10. This definition includes sensory and hidden impairments such as: mental illness or mental health problems learning difficulties dyslexia diabetes epilepsy Not all disabled children will have a special educational need, although many will, and not all children with special educational needs will have a disability ABC

11. In the case of maintained schools the ‘responsible body’ is generally the schools’ governing body Note though that the LEA is the responsible body in relation to admissions to community and voluntary controlled schools for maintained nursery schools and PRUs Who is responsible? ABC

12. A school discriminates against a disabled child if: it treats the child less favourably, for a reason relating to his/her disability, than it treats, or would treat, others to whom that reason does not or would not apply it cannot show that the particular treatment is justified Less favourable treatment ABC

13. Is it less favourable treatment for a reason that is related to the child’s disability? than someone gets if the reason does not apply to him/her? that can justified? Questions to ask ABC

14. A father seeks admission to a primary school for his son who has epilepsy. The school tells him that they cannot take the boy unless he stops having fits. Is this discrimination? Is it less favourabletreatment for a reason related to the child’s disability? Probably - having fits is an intrinsic part of the boy’s disability Is it less favourable treatment than someone gets if the reason does not apply to him/her? Yes - other children without this disability do not have this condition placed on their admission Is it justified? The responsible body does not seek to justify their less favourable treatment. So it would be unlawful discrimination Example ABC

15. A school discriminates against the disabled child if it fails to take reasonable steps to ensure that disabled pupils are not placed at a substantial disadvantage in comparison with their non-disabled peers the responsible body cannot justify its failure to make reasonable adjustments Failure to make reasonable adjustments ABC

16. Schools are not required to provide auxiliary aids or services (the presumption in the Code of Practice is that any necessary aids and services will be made under the SEN framework) remove or alter physical features (physical adaptations to school buildings are covered by the longer term planning duties) Exceptions to ‘reasonable adjustments’ duty ABC

17. Less favourable treatment may be justified: as a result of a permitted form selection or for reasons “material to the circumstances of the particular case and substantial” Failure to make a reasonable adjustment may be justified on grounds of: a need to maintain standards financial resources available/cost practicality health and safety considerations the interests of other pupils Justification ABC

18. A responsible body would no be liable to a claim of unlawful discrimination: if it did not know and could not reasonably have been expected to know about the disability The ‘lack of knowledge’ defence ABC

19. A parent can ask the school to keep confidential the nature of, or existence of, their children’s disability (Such a request may also come from a child) Schools should take into account any such requests - but are not bound to comply (If not the school should record its reasons) Where a school does comply with such a request it should make clear to the parents that this may limit the ‘reasonable adjustments it might otherwise take. Confidentiality requests ABC

20. Schools and Disability ABC

21. To recap, as from September 2002 it will be unlwful for schools, without justification, to discriminate and/or to fail to make ‘reasonable adjustments’ But with the best will in the world some barriers will remain The DDA’95, as amended, therefore imposes a new duty on LEAs and schools to plan to eliminate barriers in the longer term Planning - in context ABC

22. LEAs and schools are, respectively, under a duty to prepare accessibility strategies and accessibility plans aimed at: increasing the extent to which disabled pupils can participate in the curriculum improving the physical environment making accessible to disabled pupils information which is presented in writing to those not disabled The planning duties comes into force on 1 September 2002 but plans need not be produced until April 2003. Accessibility plans and strategies ABC

23. This guidance document is being issued by the DfES to explain and illustrate the new planning duties It should be read alongside the Schools Disability Code of Practice and the SEN Code of Practice ‘Accessible Schools: Planning to increase access to schools for disabled pupils’ ABC

24. The LEA’s accessibility strategy will: be based on information about the accessibility of Essex schools (Asset Management Plan) set goals, targets and time-scales allocate Schools Access Initiative funding relate to the allocation of capital funding Accessibility strategy ABC

25. The DfES expects schools to provide information to enable LEAs to draw up their accessibility strategies In Essex the LEA already holds much information and at this stage will be doing no more than sending out a brief questionnaire to consolidate information on wheelchair access. Information needed by the LEA ABC

26. “ The School Accessibility Plan should be responsive to the needs of the school and of the pupils accessing the education and other services provided by the school.” “Schools cannot wait for LEAs to make them accessible. Schools will have to consider what they can do to improve the accessibility of the school within their delegated budget, including the use of devolved capital funding.” School accessibility plans ABC

27. Goals achieved Strategies Timeframe Targets Outcome Short term Medium term Long term Creating an access planAnnex E to the DfES guidance document provides an example of a plan in the following format ABC

28. The DfES planning model Setting up of an accessibility planning group Evaluation strategies Access audit and review of current activities Setting goals and Devising of Utilise targets strategies available expertise ABC

29. The DfES suggest that in larger schools members could include: SEN link governor parent disabled pupil voluntary organisation representative head teacher In smaller schools the plan might be taken forward by the senior leadership team Setting up a planning group ABC

30. In any event schools should consult widely and seek to involve those such as: disabled pupils parents of disabled pupils local voluntary and disability organisations specialist teachers Utilise available expertise ABC

31. Conduct access audit (see checklist at Annex D in DfES guidance document) Use audit tools to review current activities (see next two slides for suggestions) Identify areas in need of change Access audit and review of current activities ABC

32. DfES suggested audit tools ABC

33. Schools might also consider ABC

34. Identify training needs Consider organisational and curricular barriers List and categorise necessary building adaptations refurbishment and maintenance minor capital - e.g. ramps, handrails, installation of Soundfield system, moving science lab or library to ground floor major capital - e.g. installing a lift, making linkway between accessible and inaccessible floors Prioritise into short, medium and long term Co-ordinate with existing plans Devise strategies to eliminate barriers ABC

35. Potential funding streams major capital scheme (from LEA funds) local scheme using devolved capital or non-public funds - e.g. a bequest Seed Challenge special government initiative capitalised repair and maintenance devolved repair and maintenance [Ensure all school-funded improvements meet DfES standards] Funding the plan ABC

36. DfES suggest that whilst the plan may initially be discrete it should in time be integrated with School Development Plan whilst the planning process should become a “thread running through” all the school’s plans and policies - e.g. capital works and premises management curriculum planning IT support staff training Ensuring the plan’s future ABC

37. In maintained schools the plan mustbe published in the annual governor’s report to parents. It is recommended that: the plan is published in full and made even more widely available including circulation to staff and pupils ... “to encourage a sense of ownership” Publication of the plan ABC

38. Schools are required to keep their plans under review Evaluation strategies should be developed in connection with goals, targets and time frames Success indicators might include: an increased number of disabled pupils observable changes in staff confidence evidence of greater participation of disabled pupils in school life (e.g. after school clubs) greater satisfaction of parents of disabled pupils Evaluation Strategies ABC

39. The DfES guidance concludes “Once a school has produced an accessibility plan, the school is under a statutory duty to implement the plan and to allocate adequate resources for it.” Note though that the DDA’95 merely says “In preparing an accessibility plan, the responsible body must have regard to the need to allocate adequate resources for implementing the plan” Implementing the plan ABC

40. As from September 2002 the SEN and Disability Tribunal will hear claims of unlawful discrimination The tribunal will have the power to declare unlawful discrimination order remedies but will not be able to award financial compensation Alongside this the Disability Rights Commission will offer a conciliation service to promote the settlement of claims without the need for a tribunalhearing Redress and conciliation ABC