Boarding School
Educational provision for pupils with special educational needs and disabilities
The Equality Act 2010 has made significant
day-to-day activities. (In employment this
changes to the law on discrimination as
definition has been the subject of voluminous
it affects pupils with special educational needs and disabilities (SEND), and in particular the extension of duties on schools to include the provision of auxiliary aids and services, which came into place on 1 September 2012. Further
litigation.) The definition of disability covers a broad spectrum of impairments. Disabilities may include physical conditions that affect the body, such as epilepsy or hearing impairments,
guidance can be found in the Equality
learning and behavioural difficulties, such
and Human Rights Commission (EHRC)
as dyslexia and autism, and mental health
Technical Guidance on ‘Reasonable
conditions, like depression.
Adjustments for Disabled Pupils – Guidance for Schools in England’ at www.
There are specific exclusions for substance
equalityhumanrights.com/en/publication-
dependency, seasonal allergies, and tendencies
download/reasonable-adjustments-
to steal, start fires or physically/sexually abuse.
disabled-pupils
However, in 2018, the Upper Tribunal in C&C v The Governing Body of a School confirmed
Although securing support for pupils with SEND
that the exception for those with a tendency to
via an EHC (Education, Health and Care) Plan
physical abuse towards others will not apply to
(formerly a Statement) remains an enormous
children in education who have a recognised
challenge for many families, the intention of
condition that is more likely to result in such a
legislation over recent years has been to make
tendency.
schools much more welcoming and accessible to children with SEND. As a matter of public policy this is clearly a good thing and as a matter of practice there is no doubt schools have made huge progress – which is not to say they could not do even more in future. Parents
REASONABLE ADJUSTMENTS As for employees, schools have an obligation to make reasonable adjustments for disabled pupils.
•
Where something a school does places
should always seek to work with (not against)
a pupil with SEND at a substantial
schools in addressing their child’s needs. In my
disadvantage compared to other pupils, the
experience, there is little a school finds more
school must take reasonable steps to try and
unhelpful than parents not being transparent
avoid that disadvantage.
about this. In the end, everyone is united in
•
Schools are under a duty to provide ‘auxiliary
seeking to ensure children’s needs are met and
aids and services’ as part of the duty to
their best interests are promoted.
make reasonable adjustments and as such are prohibited from charging fees for
This article sets out a summary of the law
auxiliary aids and services which constitute
relating to educational provision for pupils with
reasonable adjustments. Failure to make
SEND. For more information, including the
reasonable adjustments free of charge
SEND Code of Practice and SEND: guide for
amounts to disability discrimination and
parent and carers, go to www.gov.uk/topic/
cannot be justified.
schools-colleges-childrens-services/specialeducational-needs-disabilities
Schools are not required to remove or alter physical features (such as historic buildings) in
DISABILITY The definition of disability for pupils is the same as for disability discrimination in employment. In brief, a pupil with SEND has a disability if he or she has a physical or mental impairment which has a substantial, long-term and adverse effect on his or her ability to carry out normal
order to comply. Instead, schools have a duty to plan better access for pupils with disabilities generally, including in relation to the physical environment of the school.
David Smellie Partner, Farrer & Co SCOPE The Equality Act requires schools to make reasonable adjustments in connection with:
• • • • •
admissions the provision of education access to benefits, services and facilities exclusions, and/or subjecting the pupil to any other detriment.
TRIGGERS The duty to make reasonable adjustments is only triggered when a pupil suffers a ‘substantial disadvantage’. This is defined as anything more than minor or trivial, and would include for example, having to put in extra time/effort to do something, inconvenience, indignity, discomfort, loss of opportunity and/or diminished progress. WHAT IS AN ‘AUXILIARY AID OR SERVICE’? The EHRC guidance states that an auxiliary aid is ‘anything that provides additional support or assistance to a disabled pupil’ and gives the following examples:
• • • • • • • • • • •
a piece of equipment a sign language interpreter, lip-speaker or deaf-blind communicator extra staff assistance electronic or manual note-taking induction loop or infra-red broadcast system videophones audio-visual fire alarms readers assistance with guiding an adapted keyboard specialised computer software.
CONSEQUENCES The inclusion of ‘auxiliary aids and services’ within the duty to make reasonable adjustments for pupils with SEND has clear consequences for independent schools. One obvious area is the provision of learning support for pupils with special educational needs, which is sometimes subject to an additional fee, in much the same way as music lessons. Essentially, if a pupil with SEND is ‘disabled’ for the purposes of the Act and the support provided for his or her SEND is an ‘auxiliary aid or service’, the school is not permitted to charge for the learning support if it is a reasonable adjustment.
