Educational provision for pupils with special educational needs and disabilities

The Equality Act 2010 has made significant changes to the law on discrimination as 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 guidance can be found in the Equality and Human Rights Commission (EHRC) Technical Guidance on ‘Reasonable Adjustments for Boarding School Magazine / Media Pack 2015

Disabled Pupils – Guidance for Schools in England’ at www.equalityhumanrights. com/en/publication-download/reasonableadjustments-disabled-pupils

Although securing support for pupils with SEND via an EHC (Education, Health and Care) Plan (formerly a Statement) remains an enormous challenge for many families, the intention of legislation over recent years has been to make 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 should always seek to work with (not against) schools in addressing their child’s needs. In my experience, there is little a school finds more unhelpful than parents not being transparent about this. In the end, everyone is united in seeking to ensure children’s needs are met and their best interests are promoted. This article sets out a summary of the law relating to educational provision for pupils with SEND. For more information, including the SEND Code of Practice and SEND: guide for parent and carers, go to www.gov.uk/topic/schools-colleges-

childrens-services/special-educationalneeds-disabilities

For more information about the government’s proposed changes to SEND provisions, see its SEND Review: https://assets.publishing.

service.gov.uk/government/uploads/ system/uploads/attachment_data/ file/1063620/SEND_review_right_support_ right_place_right_time_accessible.pdf 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 they have a physical or mental impairment which has a substantial, long-term and adverse effect on an individual's ability to carry out normal day-to-day activities. (In employment this definition has been the subject of voluminous 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, learning and behavioural difficulties, such as dyslexia and autism, and mental health conditions, like depression. In general, there are specific exclusions for substance dependency, seasonal allergies, and tendencies to steal, start fires or physically/ sexually abuse. However, in 2018, the Upper Tribunal in C&C v The Governing Body of a School confirmed that the specific exclusion for those with a tendency to physical abuse towards others will not apply to children in education who have a recognised condition that is more likely to result in such a tendency. The subsequent case of Ashdown House School v JKL reiterated that schools ought to ensure that pupils with SEND who display violence related to their SEND are treated no less favourably than their non-disabled peers.

REASONABLE ADJUSTMENTS

As for employees, schools have an obligation to make reasonable adjustments for disabled pupils. • Where something a school does places a pupil with SEND at a substantial disadvantage compared to other pupils, the school must take reasonable steps to try and avoid that disadvantage. • Schools are under a duty to provide ‘auxiliary aids and services’ as part of the duty to make reasonable adjustments and as such are prohibited from charging fees for auxiliary aids and services which constitute reasonable adjustments. Failure to make reasonable adjustments free of charge amounts to disability discrimination and cannot be justified. Schools are not required to remove or alter physical features (such as historic buildings) in 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.

Educational provision

for pupils with special educational needs and disabilities

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 their SEND is an ‘auxiliary aid or service’, the school is not permitted to charge for the learning support if it is a reasonable adjustment.

WHAT IS A ‘REASONABLE ADJUSTMENT’?

There are no hard and fast rules about what constitutes a reasonable adjustment, since it will vary in any given situation, and the decision ultimately rests with the First Tier Tribunal

(Special Educational Needs and Disability) (formerly the Special Educational Needs and Disability in Schools Tribunal or ‘SENDIST’). Sometimes adjustments will be suggested by external advisors such as the child’s doctor or an educational psychologist. In other cases, parents may request a change on behalf of their child. Schools should also themselves consider whether there is an adjustment that might overcome a substantial disadvantage suffered by a pupil.

Once the potential adjustment has been identified, the school has to decide whether or not it is reasonable taking into account the following factors set out in the EHRC guidelines: • whether it would overcome the substantial disadvantage • practicability of the adjustment • the effect of the disability on the pupil • financial and other costs of making the adjustment • whether it will be provided under an EHC (Education, Health and Care) Plan from the local authority • the school’s resources and the availability of financial or other assistance • health and safety requirements • the need to maintain academic, musical, sporting and other standards • the interests of other pupils (and prospective pupils).

Failure to make a reasonable adjustment cannot be justified, whereas under the old law it could be. The only question therefore is whether the adjustment is reasonable. Schools are not expected to make adjustments that are not reasonable.

As well as considering reasonable adjustments for particular individual pupils with SEND, schools also have an anticipatory duty to consider potential adjustments which may be needed for pupils with SEND generally as it is likely any school will have a pupil with SEND at some point. However, schools are not obliged to anticipate and make adjustments for every imaginable disability and need only consider general reasonable adjustments, such as being prepared to introduce large-font exam papers for pupils with a visual impairment even though there are no such pupils currently admitted to the school. Such a strategic and wider view of the school’s approach to planning for pupils with SEND links closely with its planning duties.

EXCEPTIONS

There are some exceptions. Schools are: • not required to remove or alter physical features to comply with the reasonable adjustments duty (although their duties in connection with Accessibility Plans remain

unchanged and are contained in Schedule 10 of the Act) • still allowed to apply a ‘permitted form of selection’ (i.e. an entry test) although they will need to make reasonable adjustments to such tests, for example, by allowing them to be completed on a computer rather than by hand in particular cases.

CLAIMS OF DISABILITY DISCRIMINATION

Parents of a child (note not the child themselves) can bring a claim of disability discrimination against a school. There is a time limit of six months from the date when the parents think the discrimination occurred. Such claims are heard by the First Tier Tribunal (Special Educational Needs and Disability).

If the Tribunal upholds a claim of unlawful discrimination it will not be able to award financial compensation. It could order any other remedy, such as: • admitting a disabled pupil who had previously been refused (this is certainly the case in state schools, and case law indicates that the Tribunal also has the power to order restatement to a private school in certain circumstances) • making reasonable adjustments such as training for staff, extra tuition, review or alteration of policies or relocation of facilities. • in Ashdown House School v JKL, the Upper

Tribunal confirmed that tribunals have the power to order the school to issue an apology to the parents and/or the child if it would be of some value and appropriate in the circumstances.

PLANNING DUTIES

Schedule 10 of the Equality Act 2010 sets out the accessibility arrangements schools must implement for pupils with SEND. These are also known as schools’ ‘planning duties’. An independent school is obliged to draw up accessibility plans to improve access to education over time. Such plans should concentrate on three specific areas: • increasing the extent to which disabled pupils can participate in the curriculum • physical improvements to improve access to education and associated services • availability of accessible information for disabled pupils.

Independent schools are required to prepare these plans in writing, and implement them as necessary. Accessibility plans are subject to review as part of an Ofsted inspection. The Department for Education’s ‘Guidance on Statutory policies for schools and academy trusts’ states these should be reviewed annually. Go to: https://www.gov.uk/government/

publications/statutory-policies-for-schoolsand-academy-trusts/statutory-policiesfor-schools-and-academy-trusts#pupilwellbeing-and-safeguarding

EXAMPLES OF REASONABLE AND UNREASONABLE ADJUSTMENTS

•A prospective pupil with moderate learning difficulties applies for entry to a school but fails the entrance examination. Their parents argue for a reduced pass mark. However, the school is not satisfied the pupil has sufficient literacy skills to benefit from the education on offer. In these circumstances it may be reasonable for the school not to adjust its entry requirements to • accommodate the pupil. The parents of a prospective pupil with dyslexia claim they should be allowed extra time and the use of a personal computer during the entry examinations. However, there is no evidence to sustain this claim. It may be reasonable for the school to reject this request. If evidence supported the claim, it is likely it would be reasonable to allow • this. A sixth-form pupil who has been diagnosed with

ADD finds it difficult to concentrate while reading long texts. They would like to take A Level English and ask for the entire reading list in downloadable audio form. The school accepted a similar request from the same pupil for GCSE English, which proved to be ineffective. The reading list is very long and changes every year making the cost high for the school. The school refuses. This is likely to be deemed reasonable provided the school has researched other ways for the pupil to access the reading list. A sixth-form pupil who has been diagnosed with dyslexia finds it difficult to read long texts and ideally would like all his books on audio tape. However his A-level courses have very long reading lists which change every year, and the school deems it impractical to provide every book in tape form. This is likely to be deemed reasonable provided the school has researched other ways for • him to access the reading list. A pupil with learning difficulties finds it difficult to follow the more theoretical parts of classroom teaching and their parents ask that teachers go very slowly over the parts they find difficult to make sure they have understood them. However, the slow pace of delivery would prevent the other pupils finishing the syllabus and put their grades at risk.

It is likely to be reasonable for the school not to make this adjustment, although other alternatives should be considered, such as extra tuition outside classroom hours, as might be offered to any other • struggling pupil. A small school has little experience of pupils with

SEND and is considering admitting a pupil with a rare syndrome involving moderate learning difficulties, poor muscle tone and speech and language difficulties. The Head consults the child’s parents and a local voluntary organisation and devises a series of short staff training events drawing on available expertise. This is likely to be a • reasonable adjustment. A secondary school has a special unit for children with special educational needs and disabilities including pupils with a visual impairment. The school is already equipped for providing enlarged text and braille versions of documents. When working in the unit children are always provided with information in a range of formats before the lesson. This is rarely the case when the same children are working in the mainstream classes in the school. Not providing the information in time is likely to be a failure to make reasonable adjustments, leaving pupils with SEND at a disadvantage.

David has an extensive schools practice and is widely acknowledged as one of the leading schools lawyers in the UK. He specialises in child protection, safeguarding, pupil disciplinary matters, SEND and schools-related employment issues for a client base that includes many of the UK’s best-known schools.