The law around disability discrimination against pupils is not straightforward – but the reputational risk, let alone costs, of falling foul of the law are huge, so it’s worth upskilling staff whenever possible, as these two lawyers outline.
The law around disability discrimination against pupils is not straightforward – but the reputational risk, let alone costs, of falling foul of the law are huge, so it’s worth upskilling staff whenever possible, as these two lawyers outline.
For a school to become the subject of a disability discrimination claim is a challenging and resource-intensive matter, and can also be a source of potential reputational damage, even where such a claim is without merits.
As such, while this is a complex area of the law, there is a real value in front line staff in schools having some understanding of the legal requirements in this area, including strategies that can mitigate the risk of challenges in the First-tier Tribunal.
So, how can schools go about providing the right sort of guidance?
Firstly, it is important for schools and school staff to have a sound understanding of the legal requirements under the Equality Act 2010 (“the Act”). In particular, they need to understand the definition of disability and what is and is not included.
A disability includes any physical or mental impairment that has a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities. Examples include, but are not limited to, dyslexia, autism, Down’s syndrome, depression and schizophrenia.
They also need to have a sound understanding of the various duties on schools and school staff under the Act, and the types of decisions that these duties apply to, which include decisions around admissions, provision of education and exclusions.
The duties under the Act include the duty not to discriminate (directly or indirectly), harass or victimise, as well as the duty to make reasonable adjustments.
While, in some cases, the risks of disability discrimination may be clear, this is a complex area of the law and is at times much more nuanced.
For example, a teacher may decide to deny a pupil with a facial disfigurement a place on the school debating team, because they believe that other pupils taking part in the debates will make fun of the pupil and cause him distress. Although the teacher may have good intentions, denying the pupil the chance to be on the debating team is likely to be direct disability discrimination.
The “reasonable adjustments” duty is one in which schools often seek legal advice. This is covered by Section 20 of the Act and is the requirement to make reasonable adjustments to physical features, auxiliary aids, and provision, criteria or practice in school to prevent discrimination.
What is considered “reasonable” is very much fact specific, but there are factors that schools should consider when deciding what is likely to be considered reasonable, including school resources or cost, the effectiveness of the adjustment and the effect of the adjustment on other pupils.
These are factors that the Tribunal will consider in evaluating whether a school has acted reasonably.
There are strategies that schools and school staff can adopt to try to mitigate the risk of disability discrimination claims. Schools and school staff should have a sound understanding of parts of the Equality and Human Rights Commission’s Technical Guidance for Schools in England.
This is comprehensive guidance that covers discrimination in schools. Although it is not statutory, it may be used in legal proceedings.
If a discrimination claim is brought, schools are likely to be in a stronger position to defend the claim if they can provide evidence that they have followed aspects of this guidance.
It is likewise important for front line staff to keep detailed records of conversations with families and external professionals.
Keeping an accurate record of decision-making processes, including any risk assessments, can be key to creating an evidence trail that can be usefully relied upon where legal challenge of a school arises.
Should the various mitigation strategies against a claim fail, school staff should have some knowledge of the process of preparing for tribunal, including the relevant timelines and gathering of evidence.
The school should gather any relevant evidence and witness statements from all staff involved, addressing the allegations made in the claim form. Witnesses should only comment on what is in their own knowledge (avoiding opinions, what others have said, etc).
Schools may wish to seek legal advice at this stage, or when it is likely that a claim will be brought, as it is important that their evidence is as strong as it can be.
Browne Jacobson’s national head of education Mark Blois will be presenting at the Tes Send Show on Friday 7 October 2022, where he will be covering the legal requirements for front line staff in schools in relation to pupils with disabilities and how to mitigate against the risk of disability discrimination claims in the First-tier Tribunal (Special Educational Needs and Disability).
This article was first published by TES on 20 September 2022, written by Mark Blois and Tamara Dasht.
There’s been little evidence of interventions or financial management reviews this year and it appears the Education and Skills Funding Agency (ESFA) has re-focussed on financial delivery. It’s also telling that there were no discernible changes to the reporting of financial irregularities in the Academies Trust Handbook 2022.
The Children’s Commissioner, Rachel De Souza, has recently published a report “Beyond the labels: a SEND system which works for every child, every time”, which she intends to sit alongside the DfE’s SEND Review (2019) and SEND Green Paper (2022) and which she hopes will put children’s voices at the heart of the government’s review of SEND system.
There’s greater opportunity than ever for parents, carers and guardians to voice any concerns they have relating to their child’s education and for their concerns to be heard and to be taken seriously. While most staff in schools and academies are conscious of their legal duties relating to complaints management, many are struggling to cope with such a significant increase in the volume of complaints they must manage.
We’re pleased to collaborate with Lloyds Bank, who recently asked us and audit and risk specialists Crowe UK to offer guidance that academy trusts would find helpful when considering setting up a trading subsidiary.
The DfE has published new guidance and opened the application process for window two of the Trust Capacity Fund (TCaF) for 2022/2023, with a fund of £86m in trust capacity funding focused particularly on education investment areas.
The Independent Inquiry into Child Sexual Abuse was established in March 2015. We now have its report. As you would expect with such a broad scope, the report is long and makes a number of far-reaching recommendations. In this article, Dai Durbridge highlights seven of the 20 recommendations, sets out how they could impact on schools and suggests what steps to take now.
Browne Jacobson’s education team has been named as winner of the ‘Legal Advisors to Education Institutions’ category at the Education Investor Awards 2022 for a record sixth time.
Since the new Suspensions and Exclusions Statutory Guidance was published, we have received a lot of questions about the use of managed moves. For the first time, the Statutory Guidance does explain what a managed move is, but in relatively broad terms and does not cover the mechanics of how a managed move should operate.
Over 3000 young people from across the UK and Ireland took part in a virtual legal careers insight event, aimed at making the legal profession more diverse.
Holly Quirk, an associate barrister in Browne Jacobson’s Manchester office, was awarded the Legal Professional of the Year Award at this year’s Manchester Young Talent Awards.
The risk of assault against staff is, sadly, something that all schools need to consider carefully. Here one legal expert explains what they can do to protect staff and ensure they fulfil their duty of care.
Browne Jacobson’s education team has again been confirmed as a national powerhouse after securing five Tier 1 rankings relating to Education in the latest edition of Legal 500 and maintaining a Band 1 UK-wide ranking for Education in Chambers & Partners UK 2023.
Created at the end of the Brexit transition period, Retained EU Law is a category of domestic law that consists of EU-derived legislation retained in our domestic legal framework by the European Union (Withdrawal) Act 2018. This was never intended to be a permanent arrangement as parliament promised to deal with retained EU law through the Retained EU Law (Revocation and Reform) Bill (the “Bill”).
In this article we set out the criteria, expectations and support schools should consider if notified they fall within this new category.
The words “Grammar schools” are once again being whispered in government and the question of whether the creation of new grammar schools will finally be implemented as a central focus to DFE policy has re-surfaced.
As a result of a recent Charity Commission legal action, the former trustee of a Welsh charity was ordered to pay over £117,000 to Wrexham charities which support cancer patients.