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Legislation

The Disability Discrimination Act 1995, amended by the Special Educational Needs and Disability Act (SENDA) 2001 introduced new duties on local authorities and schools.

The Equality Act 2010 brought together and simplified existing equality legislation and also  introduced the Public Sector Equality Duty which applies to public bodies including maintained schools, academies and free schools. With regard to the planning duty for disabled pupils, three strands are identified as requirements for an accessibility strategy and accessibility plans. It is a strategy/plan for:

  • increasing the extent to which disabled pupils can participate in the school’s curriculum
  • improving the physical environment of the school for the purpose of increasing the extent to which disabled pupils are able to take advantage of education and benefits, facilities or services provided or offered by the school
  • improving the delivery to disabled pupils of information which is readily accessible to pupils who are not disabled.

Local authorities and schools have had a duty to provide reasonable adjustments for disabled pupils since 2002. This was initially under the Disability Discrimination Act 1995 (the DDA) and subsequently under the Equality Act 2010. There are three key duties:

  • not to treat disabled pupils less favourably for a reason related to their disability
  • to make reasonable adjustments for disabled pupils, so that they are not placed at a substantial disadvantage
  • to publish and implement an accessibility strategy to increase access to school education for disabled pupils.

From September 2012 the reasonable adjustments duty for local authorities and schools included a duty to provide auxiliary aids and services for disabled pupils. Many of the reasonable adjustments that schools are already making for disabled pupils include the use of some auxiliary aids, such as coloured layovers for dyslexic pupils, pen grips, adapted PE equipment, adapted keyboards and computer software. Many reasonable adjustments are inexpensive and will often involve a change in practice rather than the provision of expensive pieces of equipment or additional staff. The reasonable adjustments duty is triggered where there is a need to avoid ‘substantial disadvantage’. Substantial is defined as being anything more than minor or trivial. Whether or not a disabled pupil is at a substantial disadvantage or not will depend on the individual situation. These duties apply to disabled pupils, as defined in the Equality Act 2010.

The test of whether an impairment affects normal day-to-day activity is whether it affects one or more of the following:

  • mobility
  • manual dexterity
  • physical co-ordination
  • continence
  • ability to lift, carry or otherwise move everyday objects
  • speech, hearing or eyesight
  • memory or ability to concentrate, learn or understand
  • perception of risk of physical danger.

A child’s ability to memorise, concentrate, learn, speak, move, make and maintain positive relationships, is central to their education. An impairment that has a long-term and substantial effect on a child’s ability to do these things may amount to a disability.  Some disabled pupils also have special educational needs (SEN) and may be receiving support via school-based SEN provision or have a statement of SEN or Education Health Care Plan (EHCP). Just because a disabled pupil has SEN or has a statement or EHCP does not take away the duty to make reasonable adjustments for them. In practice, of course, many disabled pupils who also have a statement of SEN/EHCP will receive all the support they need through the SEN framework and there will be nothing extra the school has to do. However, some disabled pupils will not have SEN, and some disabled pupils with SEN will still need reasonable adjustments to be made for them in addition to any support they receive through the SEN framework. Also, some children have medical needs and do not have a statement of Special Educational Needs or Education Health Care plan and these may require adjustments to meet those needs’ in line with the council’s Medical Needs Policy.