The duty to make reasonable adjustments was first introduced under the Disability Discrimination Act 1995, which was replaced by the Equality Act 2010 from 1 October 2010. The duty now operates slightly differently but its object is essentially the same: to avoid as far as possible by reasonable means, the disadvantage which a disabled pupil suffers because of his or her disability. In this briefing, we look at the duty in more detail, consider the types of adjustments that can be made and also the possible consequences of failing to comply with the duty.
Under the Equality Act 2010 (EqA 2010), schools have a duty to take reasonable steps to avoid disadvantage experienced by disabled pupils. Discrimination occurs when a school has not complied with that duty. The EqA 2010 applies to all maintained and independent schools, including academies, and maintained and non-maintained special schools.
Definition of disability
Disability is one of the "protected characteristics" contained in the EqA 2010. It is defined as a physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities.
"Impairment" is given its ordinary meaning and includes sensory, progressive, developmental and organ specific impairments, mental health conditions and learning difficulties. "Long-term" means at least 12 months, likely to be at least 12 months or to last for the life of the child. "Normal day-to-day activities" are those activities carried out on a daily or frequent and fairly regular basis.
What is the duty to make reasonable adjustments?
Schools must take reasonable steps to ensure that disabled pupils are not placed at a substantial disadvantage compared with non-disabled pupils.
Schools owe this duty to existing pupils, applicants and in certain limited circumstances, former disabled pupils in relation to admissions and the provision of education or access to a benefit, facility or service.
The duty to make reasonable adjustments therefore demands positive action which can be summarised as follows.
- Taking steps to avoid a provision, criterion or practice (PCP) which puts a disabled pupil at a substantial disadvantage compared to those who are not disabled. A PCP includes any formal or informal policies, rules, practices, arrangements, criteria, conditions, perquisites, qualifications or provisions.
- Providing an auxiliary aid where a disabled pupil would, but for the provision of that auxiliary aid, be put at a substantial disadvantage compared to those who are not disabled. This requirement was introduced by the EqA 2010 and came into force on 1 September 2012, following consultation by the Department of Education. An auxiliary aid is something which provides support or assistance to a disabled person (for example, voice recognition software or an adapted keyboard) and can include auxiliary services such as the provision of a sign language interpreter.
It does not require schools to make alterations to physical features because this is already covered by their planning duties.
What is a substantial disadvantage?
A "substantial disadvantage" is one which is more than minor or trivial. Whether a substantial disadvantage exists is a question of fact and will be determined on an objective basis.
In considering what may constitute a substantial disadvantage, the Equality and Human Rights Commission (EHRC) guidance on what equality law means for schools suggests that the following factors should be taken into account:
- the time and effort that might need to be expended by a disabled child;
- the inconvenience, indignity or discomfort a disabled child might suffer; and
- the loss of opportunity, or the diminished progress a disabled child might make in comparison with his or her peers who are not disabled.
What is reasonable?
The EqA 2010 does not set out what would be a reasonable adjustment. Cost will inevitably play a major part and it is more likely to be reasonable for a school with greater financial resources to make more costly adjustments. The EHRC guidance suggests that a useful starting point when determining what is reasonable is to consider how to ensure that disabled pupils can be involved in every aspect of school life.
- Relevant factors might include:
- the financial and other costs of making the adjustment;
- the extent of the school's financial and other resources;
- the practicability of the step;
- the effectiveness of the particular step; and
- the availability of financial or other assistance.
The level of support a disabled pupil receives under the Special Education Needs (SEN) provisions, which complement the duty to make reasonable adjustments, will also be relevant.
What adjustments can be made?
The EHRC guidance suggests that it is good practice for schools to work with pupils and their parents in determining what reasonable adjustments can be made. Schools should not expect pupils to make suggestions for reasonable adjustments. As the duty is anticipatory and continuing, schools should plan ahead for reasonable adjustments that may be needed to help disabled pupils.
Many adjustments involve little or no cost and are easily made. The EHRC guidance includes the following example of a reasonable adjustment:
A teacher always addresses the class facing forward to ensure that a pupil with hearing difficulties is able to lip-read.
Other adjustments might include:
- providing information in accessible formats e.g. in Braille or on audio tape; and
- acquiring or modifying equipment e.g. speech recognition software.
Is there any defence for a failure to make reasonable adjustments?
A failure to make reasonable adjustments cannot be justified. If the duty arises, it will be an objective question as to whether or not the necessary adjustment is reasonable. If it is, then there can be no justification for why it is not made.
Nor can a failure to comply with the duty be defended on the basis of lack of knowledge (as it could be under the old Disability Discrimination Act 1995).
What happens if the duty is not complied with?
All disability discrimination claims against independent schools are heard by the First-tier Tribunal (Special Educational Needs and Disability) in England and the Special Educational Needs Tribunal for Wales.
Claims must be brought within six months of the alleged discrimination, or where there has been a continuing act of discrimination, within six months of the last discriminatory act. The Tribunal can, however, decide to hear claims brought outside the time limit, if it considers it just and equitable to do so.
If the Tribunal finds that a school has failed to comply with its duty to make reasonable adjustments, it may make any order it thinks appropriate. This will usually be with a view to removing or reducing any adverse effect suffered. For example, a school may be ordered to apologise to a pupil, change its policies and procedures and/or carry out staff training. The Tribunal cannot order the payment of compensation.
What should you do now?
If you have not done so recently and given the extension of the duty to cover the provision of auxiliary aids from 1 September 2012, now is the time to review your policy on reasonable adjustments to ensure that it is up to date and that all relevant members of staff are aware of and understand the policy.