Disability Discrimination Claims

As more children and young people with complex needs and disabilities attend mainstream settings, it is inevitable that issues of discrimination are likely to arise leading to claims being made under the Equality Act. Educational settings therefore need to be prepared to try and reduce the threat of claims.

The Equality Act protects those with a disability from being treated less favourably by schools and that includes maintained schools, academies, free schools and independent schools. It is important to bear in mind that discrimination does not need to be deliberate or wilful and can occur in the following circumstances:

  • A child being placed on a part time timetable
  • A child with a disability being excluded from school without reasonable adjustments being made to meet their needs;
  • A child being prevented from attending a school trip because of their disability and being treated less favourably than other children; and
  • A child being denied admission to school because the school perceives that it cannot cater for their disability.

It is not sufficient for schools to say that they were not aware that a child had a disability, they need to take positive steps to support and identify children who are presenting with long term difficulties, which may fall within the definition of a disability.

MANAGING Claims of DISABILITY Discrimination

Where a parent or carer believes their child has been subject to discriminatory treatment they may bring a claim against the Responsible Body for the school in the SEN Tribunal. Although they cannot seek financial compensation, the SEN Tribunal has the power to make a range of orders which could impact on the reputation of the school. For example, a copy of a Tribunal decision could be sent to Ofsted.

We have considerable experience representing Responsible Bodies and advising on claims of disability discrimination under the Equality Act. Where a claim is issued we can support you by:

GENERAL ADVICE on THE EQUALITY ACT

We can also support the Responsible Body in advising schools on its Equality Act and Accessibility policy. We have also provided introductory training on the Equality Act so that the senior leadership team are aware of the key aspects of the legislation and how this needs to be carefully addressed in how the setting manages disability related issues.

CASE STUDY –  FIXED TERM Exclusion

We represented a mainstream secondary school in successfully defending a claim of disability discrimination where a pupil had been given a fixed term exclusion for allowing strangers onto the school premises. It was argued (unsuccessfully) that the pupil lacked social awareness because of his diagnosis of Autism and that the use of exclusion was not justified. With our support, the Responsible Body was able to show that the pupil concerned was aware that the actions were wrong, knew the perpetrators and deliberately endangered other staff and children by allowing intruders onto the site.

CASE STUDY – Access to services

We successfully represented a secondary Academy where it was argued that the school had discriminated against a disabled child by failing to make referrals for mental health support. We were able to show that the school had taken reasonable steps to both identify and meet the needs of the child concerned. The claim of discrimination was dismissed.