Your Rights

Education pre-16 and the DDA

Summary: How the DDA affects children and their schools.

• Who has rights under the Act?
• Who has duties under this part of the Act?
• How does the DDA affect Special Educational Needs?
• Discrimination
• What can parents do if they feel that their child has been discriminated against?
• About this guide
• More information

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Who has rights under the Act?

The Act gives rights to disabled people - those with 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". Most blind and partially sighted people are likely to be "disabled" within the meaning of the Act.

Who has duties under this part of the Act?

All schools are covered, including independent and publicly funded schools, mainstream and special schools, nursery, primary and secondary schools, non-maintained special schools and pupil referral units. The ‘responsible body’ for a school is ultimately liable and as such is responsible for the actions of all employees and any agents.

Responsible bodies

Responsible bodies for different types of school:

• Maintained school - the governing body, in general
• Pupil referral unit - the local education authority
• Maintained nursery school - the local education authority
• Independent school - the proprietor
• Special school that is not maintained by a local education authority - the proprietor.

How does the DDA affect Special Educational Needs?

The SEN framework in England and Wales

The duties in the Disability Discrimination Act are designed to dovetail with existing duties under the Special Educational Needs (SEN) framework. The main purpose of the SEN duties is to make provision to meet the special educational needs of individual children.

Special education provision means:

• for a child of two or over, educational provision which is additional to, or otherwise different from, the educational provision made generally for children of the child’s age in maintained schools (other than special schools) in the area
• for a child under two, educational provision of any kind.

The duties in the SEN framework are based on the definition of SEN in s 312 of the Education Act 1996. This says that a child has special educational needs if he or she has a learning difficulty which calls for special educational provision, ie he or she:

• has a significantly greater difficulty in learning than the majority of children of the same age
• or has a disability which prevents or hinders the child from making use of educational facilities of a kind generally provided for children of the same age in schools within the area of the LEA
• is under five and falls within the definition at (a) or (b) above or would do so if SEN provision was not made for the child.

Provision is made for special education under the School Action and School Action Plus stages and through a Statement of special educational need (SEN).

Finding out about a pupil's disability

Schools are advised to take reasonable steps to find out whether pupils or prospective pupils have a disability in order to ensure that disabled pupils are not discriminated against. Disabled pupils and their parents do have a right to require confidentiality. It is acknowledged that where this is asked for, it may limit what a school is able to do to ensure that the particular pupil does not experience discrimination or disadvantage.

What is covered under the duties?

• admissions
• education and associated services
• exclusions from school and associated services.

Discrimination

Discrimination against a disabled pupil or prospective pupil can occur in two ways:

1 Disability-related less favourable treatment

Discrimination can occur when a responsible body treats a disabled pupil (or prospective pupil) less favourably, for a reason relating to his or her disability, than someone who does not have a disability, without justification.

In some cases, the school may be able to justify treating a disabled pupil ‘less favourably' if it can show that it was for a reason which is both material (specifically related to the case) and substantial (more than minor or trivial) to the particular case.

2 Failing to make a ‘reasonable adjustment’

The second way in which discrimination can take place is where a responsible body fails to take reasonable steps to ensure that disabled pupils or prospective pupils are not placed at a substantial disadvantage in comparison with their non-disabled peers without justification.

The duty is an 'anticipatory' duty, which means that schools should not wait until a disabled pupil approaches them before making changes to the way in which they operate.

There is no obligation under the Act to make reasonable adjustments by providing any auxiliary aids and services or by making physical alterations to buildings. Auxiliary aids and services would usually be obtained through the SEN duties. Physical features (and the curriculum) are covered by the longer-term planning duties for LEAs and schools.

What is meant by a substantial disadvantage?

For the reasonable adjustment duty to apply, pupils (or prospective pupils) must be put at a substantial disadvantage. "Substantial disadvantage" is not defined in the Act but 'substantial' is likely to mean more than minor or trivial.

What is ‘reasonable’?

The Act also does not define ‘reasonableness’ – this will depend on the circumstances of a particular case and ultimately be for the SEN and Disability Tribunal to decide.

Can a failure to take ‘reasonable steps’ be justified?

Failing to take reasonable steps can only be justified if there is a reason that is both material to the case and substantial, as with justification for less favourable treatment.

What can parents do if they feel that their child has been discriminated against?

If they feel they have a case, parents can take a case to an SEN and Disability Tribunal, Admissions Appeal Panel or Exclusion Appeal Panel. Or, with the consent of the school against which a claim of discrimination has been made, by using the conciliation service set up by the Equality Human Rights Commission (EHRC) (which has taken over the work of the Disability Rights Commission).

The SEN and Disability Tribunal (SENDIST)

Parents must make a claim of unlawful discrimination to SENDIST within six months of when the alleged discrimination took place. This time period is extended to eight months if the dispute is referred to the EHRC conciliation service before the expiry of the six-month period. Where the discrimination takes place over a period of time, the six months begins at the date of the last discriminatory act. A claim can be lodged at any time from the time the alleged discrimination occurred to the expiry of the six (or eight) month period. In most cases, particularly in respect of fixed-period exclusions, permanent exclusions and admissions, the sooner the claim is made the better.

If a claim of unlawful discrimination is successful, SENDIST can:

• make a declaration that a child has been unlawfully discriminated against
• and can order any remedy it thinks reasonable against the responsible body, with the exception of financial compensation.

Admissions Appeal Panel

If a claim is about admission to a school, a claim can be made to the admissions appeal panel. The claim should be made in writing and it should set out the circumstances that have led to the claim being made. There is often a very short time limit in which to appeal but this should not be less than 14 days (that is, 10 working days) from the date of notification to the parents that their application for a place at the school was unsuccessful. Claims being heard by admission appeal panels will be subject to the usual rules and procedures of those panels.

Exclusion appeal panels

When a head teacher excludes a pupil from school, the parent is notified immediately. The disciplinary committee of the school governing body then meets to review the head teacher’s decision and decide whether to confirm that decision. There is a limit of 15 school days from the day the parents are told of the decision of the disciplinary committee in which to lodge an appeal to the Exclusion appeal panel. The Panel has to meet within 15 school days of the appeal being lodged.

About this guide

Since September 2002, all schools have legal duties under the Disability Discrimination Act (DDA) 1995 (as amended by the Special Educational Needs and Disability Act 2001) not to discriminate against disabled pupils and disabled prospective pupils. These new duties interact and combine with the Special Educational Needs Framework and new planning duties for schools and local education authorities (LEAs).

More information

Download our Education pre 16 and the DDA: DDA Factsheet 10 (Word)

Useful links

• What to do if you experience discrimination
• Sources of information about the DDA.

• Access to goods, facilities and services, and public authority functions under the DDA
• 'Reasonable adjustments’ and the DDA
• Definition of disability under the DDA.

• EHRC Codes of practice.

• Registration as blind or partially sighted.

Return to DDA homepage.

Content author: DDAEnquiries@rnib.org.uk

Last updated: 01/08/2008 19:04