Today CDC is launching a new guide for schools on the disability duties in the Equality Act*. To accompany the launch of the new guide, Philippa Stobbs is providing a series of blogs that focus on different aspects of the disability duties that provide some challenges for schools.
*A new guide for early years settings is also about to be published.
Most of us carry around in our heads a relatively restricted view of who counts as disabled and in consequence we tend to underestimate the number of people who may be disabled. An added complication is that most of us who are involved in education tend to be more focused on the definition of special educational needs than the definition of disability.
Does this matter? Surely it’s a private matter whether someone is disabled.
Well, yes, it is. But we owe a particular set of duties to disabled people and, in the context of schools, to disabled pupils.
The best known of these duties is the duty to make reasonable adjustments. Most of us also know that this duty is anticipatory so we have to think ahead and make reasonable adjustments to avoid any disadvantage that might otherwise occur. Reasonable adjustments can also help us to avoid other forms of discrimination. And they can help us to involve disabled pupils in the whole life of the school.
So it’s important to know who our disabled pupils are, so that we can work out what adjustments are going to work for them.
However, there is no duty on parents, carers or children and young people themselves to tell schools about any disability. And, another consideration, we do not necessarily know whether a child counts as disabled, under the Equality Act, unless we go to the Tribunal. If a claim of discrimination does go to the Tribunal, it is no defence for a school to say that it didn’t know that a pupil was disabled, unless the school can show that they could not reasonably have been expected to know that they were disabled. And a key point here is whether the school knew about a pupil’s impairment or condition, not whether it amounts to a disability under the Equality Act. That issue is decided by the Tribunal. This is unlikely to be a good way of finding out.
So what should schools do? In what way might they ‘reasonably be expected to know’? How might they find out?
Well, there are all sorts of ways in which schools receive information about children, before, during and after admission: they may receive information from a previous school or setting; they may be told about a particular need or condition by the child’s parents; it may be through information gathered through careful observation of a child’s progress and behaviour.
Asking questions is an obvious way of finding out but, with no duty on either parents or pupils themselves to disclose a disability, schools need to ask questions in a way that both respects a pupil’s dignity and privacy and encourages parents, or children and young people themselves, to share information. If parents think that information might be used against their child, for example to encourage them to go to a different school, rather than to support them to be included, they may be reluctant to share information.
It is important to recognise that parents may not think of their child as being disabled and may not be aware that their child’s impairment or needs amount to a disability under the Equality Act. So it’s a good idea to ask broad, open questions about any learning difficulty, disability or a health condition. Or just focus on asking about any adjustments the school may need to make to ensure that the child feels welcome and included in the school. The more welcome the family feels a child is, the more readily they will share the information that schools need in order to meet their duties.
The technicalities of the definition are set out in the Schools’ Guide that CDC is launching today. But these considerations are not straightforward and schools do not necessarily find them easy.
But it is important to get this right. One school, who found themselves facing a claim of discrimination at the Tribunal, knew about a number of learning difficulties the pupil had, but didn’t think of these as amounting to a disability. In consequence, they didn’t realise they needed to make reasonable adjustments for him. They thought of him as ‘a mainstream child’, as a child who should have been following the rules, rather than a child who needed adjustments to enable him to access learning.
With a strong focus on inclusive schools in the SEND Green Paper, these are important considerations. Perhaps the tendency to shorten ‘disability’ to a ‘D’ at the end of ‘SEND’, in one acronym, diminishes the importance of the separate consideration of disability, the definition and the responsibilities associated with it.
