Disability discrimination is now covered in law by the Equality Act 2010. Disability discrimination is when you are treated less well or put at a disadvantage for a reason that relates to your disability in one of the situations covered by the Equality Act 2010.
All schools, including Further Education and Higher Education institutions, have duties under the Equality Act. They have duties towards pupils, sometimes prospective pupils and towards disabled parents or service users.
Under the Equality Act, a disability means a physical or a mental condition which has a substantial and long-term impact on your ability to do normal day-to-day activities. This definition is not exactly the same as the definition of special educational needs but does or may overlap. If your child has an EHCP, they are likely to meet the definition but not always.
According to the Equality Act, there are six different ways in which you can be discriminated against because of your disability.
Find out more about the ways in which you can be discriminated against from the Equality and Human Rights Commission.
If a school knows about a disability, then they should be taking that into account and making reasonable adjustments in terms of supporting the child or young person . Failure to make a reasonable adjustment cannot be justified; where the duty arises, the issue is whether or not the adjustment is ‘reasonable’.
If you think that you or your child has been discriminated against, before considering the legal route, it is worth thinking about an informal option first. The Equality Advisory Service has a very useful helpline. They cannot support you to take legal action but they can let you know if they think you have a case and have template letters that you can send if it is a case of discrimination.
Appeals against discrimination by schools or local authorities due to a child’s disability are dealt with by SENDIST – the same tribunal that deals with appeals about EHCPs. One thing worth noting is that the judge cannot order financial compensation but having your day in court could mean that you receive an apology for what has happened or it could lead to a change in school practices moving forward which will benefit other families as well.
However, unlike an appeal to SENDIST over an EHCP, proving discrimination can be difficult and the Tribunal can be unpredictable. It can often be you or your child’s word against the school and even if you end up at Tribunal, they may not find in your favour.
You might also find that the appeal process leads to further damage of the relationship with the school and you might also find that even with an apology, nothing will actually change. It can also sometimes be difficult to find a solicitor to take on the case, particularly if it is not an appeal to SENDIST.
If you are dealing with a Further Education or Higher Education college or are looking at any other type of discrimination, the case would be dealt with in the County Court rather than by SENDIST. This is a very different process to Tribunal claims. If you end up in County Court and you lost then the judge could award costs against you.
Legal action under the Equality Act is not the only solution in some cases. Alternatives might include:
- An EHC Needs Assessment leading to an EHCP
- Judicial Review
- To challenge an exclusion that wasn’t overturned on appeal
- To challenge a failure to put in place provision which is in Section F of an EHCP
- Appeal against an EHCP
As a charity, we are not able to provide detailed advice on disability discrimination. We would always suggest parents consider the other options available but if these aren’t suitable, then we would suggest contacting a solicitor.