Equality Act 2010 and reasonable adjustments
Organisations including educational settings must take reasonable steps to remove barriers children and young people face due to their disability. This is to ensure that they are not put at a significant disadvantage compared to children who do not have a disability. This is called a duty to make reasonable adjustments under the Equality Act 2010. This is an anticipatory duty therefore the school/college or local authority should prepare itself in advance of admitting disabled pupils.
The Equality Act 2010 says:
A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities. (Section 6)
If your child does not have a diagnosis this does not necessarily mean that they do not have a disability under the Equality Act. What would need to be established is that they have a condition which is affecting their ability to function day-to-day. The term ‘long term’ would be if it has lasted for at least 12 months, is likely to last for at least 12 months or is likely to last for the rest of the individual’s life. The impact must be more than minor or trivial to be considered substantial.
Where a provision, criterion or practice puts a child at a substantial disadvantage in relation to others who do not have a disability, the school/college must take reasonable steps to avoid the disadvantage. As adjustments only have to be made if it is reasonable to do so, consideration is given to different points, for example the nature of the disability, how practicable the changes are, the cost of making the changes and any changes that have already been made.
There is also a requirement for schools/colleges to take reasonable steps to provide auxiliary aids such as a piece of equipment, a service or adapted text or personal assistance, where a disabled pupil would be put at a substantial disadvantage if compared with others who are not disabled.
Schools are not under a duty to change physical features where they put a disabled pupil at a disadvantage. However this duty does apply to Colleges and Universities, these education settings are under a duty to take reasonable steps to avoid substantial disadvantage where a physical feature of the building or premises puts a young person at a substantial disadvantage in comparison with non-disabled students. This may include removing the physical feature in question or altering it so the student has a reasonable means of avoiding it.
The SEND Code of Practice says:
The parents of disabled children and disabled young people in school have the right to make disability discrimination claims to the Tribunal if they believe that their children or the young people themselves have been discriminated against by schools or local authorities when they are the responsible body for a school. (11.53)
It would be useful to be aware that there are conditions which would not be deemed to be impairments under the Equality Act. This includes the tendency to physically hurt others. The law does not distinguish between someone who is violent and someone who has an underlying disability and as a result may hit out on occasion. This however, doesn’t prevent the tribunal looking at other relevant aspects such as the schools duty to make reasonable adjustments.