Disabled Children and the Equality Act 2010 - What Early Years providers need to know and do: A blog from the Equality and Human Rights Commission

Abigail Hamer, Legal Principal at the Equality and Human Rights Commission, reflects on the Equality Act Guide for Early Years, recently published by the Council for Disabled Children, and the importance of making reasonable adjustments for disabled children from their very earliest days.

The purpose of the Equality Act 2010 is to promote equality and combat the discrimination experienced by people with protected characteristics, including the protected characteristic of disability. In the Equality Act 2010, disability is treated differently to the other protected characteristics. This is because the Act was specifically drafted to allow employers, service providers and schools to treat disabled people more favourably than they would non-disabled people, in recognition that disabled people can be a particularly vulnerable group.

More relevant than ever

Disabled children are especially vulnerable, given the combination of their young age and their disabilities. More young children are receiving Education, Health and Care Plans. In England, more than 66,000 new plans were issued in 2022, an increase of 7% on the year before, as shown by Government statistics. It is crucial that the law works to protect these children.  The Council for Disabled Children’s new Guide below does an excellent job of explaining how the law seeks to do that.

Disabled Children and the Equality Act 2010: What Early Years providers need to know and do

The Equality Act and education providers

The Guide sets out that although private nurseries and schools are covered by different parts of the Equality Act, they are both still subject to the duties contained within the Act, as are independent education providers.

The Upper Tribunal made this clear in the case of The Proprietor of Ashdown House School v JKL and MNP [2019] UKUT 259 (AAC) which held that the SEND Tribunal can insist that private schools reinstate pupils who have been excluded, where the school is found to have discriminated against them. In that case, a young boy with ADHD, a sensory processing difficulty and other emotional and social difficulties, was excluded for being aggressive towards peers. Although protecting the health and safety of other children was found to be a legitimate aim for the school, the Upper Tribunal found that there were more proportionate steps that could have been taken for him.

Making adjustments early on

In many cases with children displaying challenging behaviour, if adjustments are made for children at an early stage, the provider can manage behaviour and stronger sanctions are less likely to be needed. These adjustments may be relatively simple steps like making sure the child has a chance to participate quickly in activities or have access to a quiet area where they can calm down.  

This is why the duty to make reasonable adjustments is so crucial. It is an anticipatory duty, which means that providers have to think about, and put into place, adjustments which could help a disabled child who wants to join their provision. It is also continuing, meaning that adjustments should be kept under review and amended or improved where appropriate.

Requirements of the reasonable adjustments duty

In early years provision, the first and third requirements of the reasonable adjustments duty apply to all providers, whether they are private nurseries, independent schools or local authority establishments.

The first requirement involves altering or adjusting “provisions, criteria or practices” – namely policies, procedures and the way things are done within settings.

The third requirement is to provide “auxiliary aids and services”, and includes the provision of equipment, advice or support. This might include support from a one-to-one member of staff.

The second requirement does not apply to schools but would apply to private nurseries. It is a duty to make reasonable adjustments to physical features of buildings for example a ramp, signs or lighting.

What are reasonable adjustments?

Many of the reasonable adjustments that Early Years Foundation Stage providers might want to make are relatively low cost to implement. For example, simply re-arranging furniture so that it helps children with visual, hearing or sensory disorders can be a reasonable adjustment. Children with neurodivergent conditions may benefit from being allowed to move around more, or from being given specific jobs to do, as well as quiet spaces and regular breaks.

Communication with children, their families and between staff members is key when making reasonable adjustments. In an ideal world with no resource constraints, daily one-to-one supervision would be a common reasonable adjustment. In reality, the reasonable adjustment is perhaps to provide one-to-one support where there is a risk that a particular task or activity might lead to a child becoming unwell, distressed or dysregulated.

A recent case involving a young child touched on whether making adjustments could have avoided a permanent exclusion from school. In this case, the young child (aged 7 at the time of the events) was being assessed by an educational psychologist and attending a nurture provision placement for part of his time and his local primary school for the other part of his time. The school was aware that unstructured times were challenging for the child. He has since been diagnosed with Autistic Spectrum Disorder. The child and his class were attending a forest school outdoor activity, with more than 20 children in the care of 3 adults, when the child became dysregulated and aggressive. The member of staff who was tasked with “keeping an eye” on the child was also leading the activity. The school’s decision to permanently exclude the child for the protection of other children was initially found to be reasonable. However, on appeal, it was held that there were a number of other steps which could have been taken first to avoid such a strong step being taken. The appeal decision did not comment on reasonable adjustments, but looking at the facts of the case, if financial resources allowed, it seems clear that a reasonable adjustment to provide the child with one-to-one support during unstructured activities may have avoided the incident.

Keeping children in education

Early years providers having strategies that work enables children to participate fully in a number of ways.

Firstly, the child will have a positive educational experience from the beginning. They will hopefully enjoy their early years, which should lay the groundwork for the same further along in their education.

Secondly, the provider will be able to share successful strategies with the child’s school which will help maintain a consistent approach when the child moves on.

And perhaps most importantly, theory and research both suggest that if you intervene early, the outcomes for children are improved. I hope this Guide will help providers understand how the law works in order that young disabled children are able to enjoy the best possible start.