Schools’ obligations to disabled pupils

A pupil has a disability if he or she has a physical or mental impairment that has a long-term and substantial adverse effect on his or her ability to carry out normal day-to-day activities. This also includes sensory impairments such as hearing and sight.

The duty is ‘to take such steps as it is reasonable to have to take to avoid the substantial disadvantage’ to a disabled person caused by a provision, criterion or practice applied by or on behalf of a school, or by the absence of an auxiliary aid or service.

The Act does not define what is reasonable, so there is some flexibility for differing sets of circumstances.

The reasonable adjustments requirement applies where there is a need to avoid ‘substantial disadvantage’. ‘Substantial’ is defined as being anything more than minor or trivial and is case specific.

Schools are required to take positive steps to ensure that disabled pupils can fully participate in the education provided by the school, and that they can enjoy the other benefits, facilities and services that the school provides for pupils.

In so far as the physical features of the school are concerned, there is a duty to plan better access for disabled pupils generally.

Schools need to anticipate what disabled pupils might require and what adjustments might need to be made for them.

Some disabled pupils will also have special educational needs (SEN) or an education, health and care plan (EHC plan). These do not take away a school’s duty to make any necessary reasonable adjustments.

Some of the factors that are likely to be taken into account when considering what adjustments it is reasonable for a school to have to make:

• The extent to which special educational provision will be provided to the disabled pupil under Part 3 of the Children and Families Act 2014
• The financial and other resources of the school
• The costs of making the adjustment
• The extent to which taking any particular step would be effective in overcoming the substantial disadvantage suffered by a disabled pupil
• The practicability of the adjustment
• The effect of the disability on the individual
• Health and safety requirements
• The need to maintain academic, musical, sporting and other standards
• The interests of other pupils and prospective pupils

If the school considers these issues carefully and concludes that there are no steps that would be reasonable for them to take to make its provision for any disabled pupil more accessible, there is unlikely to be a breach of the law.

However, in such circumstances, schools are strongly advised to set out their reasons for such a decision so those can be shared with parents and, if absolutely necessary, explained to a tribunal if the parents take issue with the school’s decision and reasoning.

For further information relating to the points raised in this article, please contact Chris Burns, or a member of the Education Team.

We are hosting a Seminar in November which will focus on GDPR in the Education Sector.