Disability Discrimination And The Duty To Make Reasonable Adjustments

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.

Introduction

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...