New rights for disabled children and young people will come into force in September 2002. Schools, nurseries, education authorities and further and higher education institutes will not be able to discriminate against disabled pupils or students. This applies to all aspects of school life and all types of schools. This factsheet explains in general terms these new duties as they refer to schools, but it is not an authoritative explanation of the law.
The Disability Discrimination Act 1995 (DDA) covers employment, access to goods, facilities, services and premises.
The Special Educational Needs (SEN) and Disability Act 2001 inserts a new part into the DDA .The duties in education apply across Scotland, England, and Wales. The SEN provisions of the 2001Act only apply to England and Wales. SEN in Scotland is a devolved matter and is covered by the Education (Scotland) Act 1980.
What do the definitions mean?:
The definition of disability in the Disability Discrimination Act is not the same as that in other legislation. A child with special educational needs may not be 'disabled' and will therefore not have the protection of the Act. Conversely a' disabled' child does not need to have been assessed as having special educational needs in order to be protected by the new duties. (See next paragraph)
The Disability Rights Commission (DRC)has issued a draft Code of Practice about the duties in the Act. They are consulting widely on the draft Code. The consultation ends on October 31st.Contact the DRC helpline or visit the website (see link at end)for copies of the draft Code and the consultation document.
Who is protected?
Both disabled pupils and prospective pupils are covered by the new duties.
A person has a disability if he or she has a physical or mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. Impairments resulting from or consisting of mental illness are only covered if it is a clinically well-recognised illness.
A person who has had a disability is protected, even if the person no longer has the disability.
Even if a person is not disabled, the person can be protected from 'victimisation' under the Act. That is, if someone gives evidence, information or makes an allegation of discrimination, they cannot be treated less favourably than others.
What provision is covered?
Education provided at all schools is covered. This includes independent and publicly-funded schools, mainstream and special schools. It includes nursery, primary and secondary schools. Any functions of education authorities, within Scottish education legislation, are covered (eg policies, use of no delegated budgets, pupils' services).
Duties apply to 'responsible bodies'. The' responsible body' for a particular school depends on the type of school. Education authorities are responsible for schools they manage. The managers of the school are responsible for grant-aided schools. The proprietor is responsible for independent schools.
Many private, voluntary and statutory providers of nursery education are not constituted as schools. Social care of young children in these settings is already covered by Part III ' 'Access to Goods and Services' of the DDA. Education in these settings is now also covered by Part III of the DDA.
SEN and Scottish Education Legislation
Auxiliary aids and services are provided through special educational needs provision - and not the DDA.
Children have 'special educational needs' if they have a 'learning difficulty' requiring special educational needs provision. Records of Needs are opened for children with complex, pronounced or complex special educational needs requiring continuing review.
All education authorities must secure 'adequate and efficient provision of school education for their area'. Every child of school age has the right to school education directed to developing the 'personality, talents and mental and physical abilities' of the child or young person to 'their fullest potential'.
Education authorities will soon have to provide a mainstream place for a child unless: it is unsuited to the child's ability or aptitude; it would be incompatible with the provision of efficient education to other children; or it would result in unreasonable expenditure. Even if such a reason applies, a mainstream place can still be provided subject to the parent's and child's views.
Major changes are being considered in Scottish special education at the moment, such as: Records of Needs; numbers and roles of educational psychologists; local education authorities' planning for accessibility.
The Main Points:
1. Every aspect of school life is covered by the duties: admissions; education and associated services; and school exclusions
2. It will be unlawful to discriminate against a disabled child in relation to his or her access to education.
Discrimination can occur in two ways
1. 'Less favourable treatment'.
Treating a disabled pupil or prospective pupil less favourably, for a reason relating to his or her disability, than someone to whom the reason does not apply.
2. Failing to make 'reasonable adjustments' to ensure that disabled pupils or prospective pupils are not placed at a substantial disadvantage to their non-disabled peers.
a. Those responsible for schools must consider appropriate changes, even if they presently do not have disabled pupils.
b. To justify discrimination, a reason must be both 'material' and 'substantial'. In other words, the reason must be clearly connected to the particular circumstances and the reason cannot be minor or trivial.
c. In making reasonable adjustments, schools are not required to provide auxiliary aids or services nor make physical alterations to school buildings.
e. Schools may be justified in treating a disabled child less favourably if it is a result of a permitted form of selection (eg music schools). Subject to the laws of sex and race discrimination, independent schools may decide on their own selection. Independent schools may select on grounds of ability and aptitude so long as the selection criteria do not lead to the exclusion of disabled children.
What if schools don't know a child is disabled?
Those responsible for schools will not be liable to a discrimination claim if theydid not know that a pupil was disabled and if they could not reasonably have been expected to know.
A parent can ask for a child's disability to be kept confidential. A child can also ask for confidentiality. If the responsible body thinks the child understands what the child is asking and the potential effects of the request, the responsible body must comply with the child's request.
What happens if someone makes a claim of unlawful discrimination?
A parent or young person over the age of 16 can make a claim. A child under the age of 16 can also make a claim if the child has a 'general understanding of what it means to do so'. A child of age 12 or more is presumed to have sufficient age and maturity.
The Disability Rights Commission will set up an independent conciliation service. Disputes may be referred to conciliation if both the claimant and the responsible body agree. This service cannot impose a settlement between them. Claims of unlawful discrimination go to the Sheriff Court. Claims are not made against an individual employee but against the responsible body. The claim must be made within 6 months of the discrimination complaint being made or eight months if the complaint is referred to the conciliation service.
A Sheriff Court can:
1. declare someone's rights and responsibilities have been affected and whether any discrimination has taken place
2. make a legally-binding requirement to prevent the responsible body from discriminating in the future (an 'interdict') and/or to require positive action by the responsible body (a 'specific implement')
A child's right to have a say
In statutory schooling, a child's views must be given consideration in any decisions that significantly affect the
child (so far as is reasonably practicable).
A child can ask for confidentiality in regards to his or her disability.
A child with a 'general understanding of what it means to do so' can make a complaint of unlawful discrimination
and take a claim to court.
Other protections from discrimination
The Human Rights Act 1998 includes the right not to be denied education and the right not to be discriminated against in the enjoyment of that (and other listed) rights. The Act applies to 'public' authorities - and thus schools.
Discrimination on the basis of race is prohibited by the Race Relations Act 1976 and the Race Relations Amendment Act 2000. Discrimination on the basic of sex is prohibited by the Sex Discrimination Act 1975. Both these Acts apply to education.
For further information on issues relating to disability discrimination, the Codes of Practice and the SEN & Disability Act 2001, you can also get in touch with:
DRC Helpline Freepost MID 02164 Stratford upon Avon CV37 9BR
DRC Helpline: 08457 622633; Textphone: 08457 622644; Faxback service: 08457 622611
Website: www.drc-gb.org
For further information on issues relating to special educational needs legislation and national advice, contact:
Enquire Princes House 5 Shandwick Place Edinburgh EH2 4RG
Tel: 0845 123 2303 Textphone 0131 222 2439 Typetalk 0800 959 598
E-mail: Enquire.SENinfo@childreninscotland.org.uk
Website: www.childreninscotland.org.uk/enquire
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