Disability Discrimination is when someone is treated less favourably or put at a disadvantage for a reason that relates to their disability.
The definition of disability is found within Section 6(1) of the Equality Act:
(1) 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.
The treatment could be a one-off action, the application of a rule or policy or the existence of physical or communication barriers which make accessing something difficult or impossible.
The discrimination does not have to be intentional to be unlawful.
Types of disability discrimination
The Equality Act 2010 sets out a number of ways in which a pupil may be discriminated against because of disability:
- Unfavourable treatment arising from disability: when a school treats a pupil badly because of something connected to their disability, such as not allowing their assistance dog into the school or penalising them for needing time off for medical appointments, and the school does not have a good reason for doing so.
- Direct discrimination: when the school treats the pupil worse than a non-disabled pupil in a similar situation because of their disability.
- Indirect discrimination: where a school has a particular policy or way of working that has a worse impact on disabled people compared to people who are not disabled. This is unlawful unless the organisation or employer is able to show that there is a good reason for the policy and it is proportionate.
- Failure to make a reasonable adjustment: schools should make reasonable adjustments to accommodate pupils with disabilities. What is reasonable depends on the facts – the Equality and Human Rights Commission have published guidance on reasonable adjustments in schools which can help you work this out.
- Harassment: When the pupil is treated by a staff member in a way that makes them feel humiliated, offended or degraded.
- Victimisation: When the pupil is treated badly because they or their parents have made a complaint of discrimination under the Equality Act 2010.
Lodging a formal complaint of disability discrimination against an educational setting
If you feel that your child/young person has experienced a form of disability discrimination at the hands of their educational setting then you may wish to lodge a formal complaint against them. Each school will have their own internal complaints process which you will need to follow in the first instance. You will be able to find information on this on their website.
If the complaint remains unresolved, or you wish to escalate this to a disability discrimination claim then you can bring an appeal to the SEND Tribunal. You must do this within 6 months of the alleged discrimination (if the discrimination took place over a period of time, the six months begins at the date of the last discriminatory act).
Any appeal will actually be against the responsible body of that school, e.g. the governors.
Submitting a disability discrimination appeal
To submit a Disability Discrimination appeal you must complete one of the following forms:
You can find these forms to download from the .gov website – Special Educational Needs and Disability Tribunal forms – GOV.UK (www.gov.uk)
When you have completed and signed the claim form, please make sure you keep your own copy, and then send it and all other relevant documents to:
HM Courts & Tribunals Service Special Educational Needs and Disability
1st Floor Darlington Magistrates’ Court,
Phone: 01325 289350
Or email it with electronic copies of all the necessary documents to:
We recommend sending via email to ensure that there is a paper trail.
You will need to evidence the legal tests and definitions that link with disability discrimination when preparing your claim. The first step would be to be evidencing that your child is classed as ‘disabled’ within the meaning under the Equality Act 2010.
You would need to evidence this in section 6 of the SEND 4a or SEND 4b forms. If there is a diagnosis of a particular condition for example, you must provide copies of documents showing this. It is very important to bear these legal tests in mind throughout the claim.
When explaining the situation in which you feel that your child has been discriminated against because of their disability, it is really important that you are clear about what happened and explain it in a chronological order.
You should have a look at the schools’ policies such as SEN policy, behaviour policy, equality statement etc; any that may relate to the unfavourable treatment. You may want to outline specific policies alongside your claim, pointing out exactly what it is they are failing to do when supporting your child.
You will need copies of professional reports or other documents which help explain the disability in question. You should submit this evidence with your claim form.
You should also send copies of any documents which might help the SEND Tribunal to understand what the disability discrimination claim is about. This could include correspondence, copies of documents sent from the school, or written statements from people who witnessed events.
If your child has an EHCP you should also include a copy of this and highlight the specific parts that you do not feel that school are failing to meet.
Something to bear in mind also when preparing such a claim to take to the SEND Tribunal is the outcome that you seek. What do you want to achieve from this claim?
Discrimination claims are ‘backward looking’ and do not look forward to what support is needed in the future. While the SEND Tribunal can order reasonable adjustments to be made, if what you really want is for better support to be put into place and a different school to be named in then you might be better focusing your time and energy on liaising with the case officer in order to find a more suitable school. If however, you think it is important to bring the claim so that the school are held to account, to prevent future discrimination against other children etc then absolutely this is the right path to take.
If the claim against a school was successful, it might be ordered to:
- Arrange training for school staff
- Change school policies or guidance
- Provide extra tuition, to make up for lost learning
- Provide a written apology
- Provide trips or other opportunities to make up for activities the child or young person may have missed
- Make reasonable adjustments to accommodate the pupil’s disability
- Change the location of lessons or activities within the school
- Where a child had been refused entry to an independent school in a manner that was discriminatory, the school could be ordered to admit the child or young person
- If a child was permanently excluded and this was found to be discriminatory, the school could be ordered to re-admit the child or young person.
The following things cannot be ordered:
- Financial compensation
- Physical alterations to school buildings
- The dismissal of a particular staff member.