Planning improvements for disabled pupils' access to education: guidance for education authorities, independent and grant-aided schools

Appendix F - Overview of education legislation

1. It is not feasible in this guidance to provide a detailed account of all legislation relating to school education and disability. A summary of particularly relevant legislation is provided below but reference should be made to that original legislation and any accompanying advice where more detail is required.

The Standards in Scotland's Schools etc. Act 2000

2. The Standards in Scotland's Schools etc. Act gives children a right to a school education provided by an education authority, which is 'directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential.' ^[49] It includes a presumption in favour of providing mainstream education for all children ^[50] except where education in a school other than a special school would:

• not be suited to the ability or aptitude of the child;
• be incompatible with the provision of efficient education for the children with whom the child would be educated; or
• result in unreasonable public expenditure being incurred which would not ordinarily be incurred.

3. It will always be necessary to tailor provision to the needs of the individual child and it is recognised there is a need to make available a range of mainstream and specialist provision, including special schools, to ensure the needs of all pupils and young people are addressed.

4. The Act also places education authorities under duties to provide education elsewhere than at a school where a pupil is unable to attend school due to ill health, and to make provision where a pupil is excluded from school.

The Education (Additional Support for Learning) (Scotland) Act 2004 (as amended) (the ASL Act)

5. The ASL Act provides a framework for identifying and addressing the additional support needs of children and young people who face a barrier, or barriers, to learning; children and young people have additional support needs when they require additional support in order to benefit from school education. Young people are those over school age but who have not yet attained the age of eighteen.

6. The ASL Act ^[51] places duties on education authorities, requires certain other agencies to provide help where this is requested, and provides parents and young people with certain rights.

7. Not all children with additional support needs will be disabled and, conversely, not all disabled children will necessarily require additional support to enable them to benefit from education. Appendix A explores the overlap between disability and additional support needs.

8. However, where a child or young person is disabled and has additional support needs then the full requirements of the ASL Act, and the Equality Act (see below) apply.

9. In particular, the ASL Act requires that education authorities must provide appropriate additional support for certain disabled children under school age (in this case, generally children under 3 years of age) belonging to their area who have been brought to the attention of the authority as having additional support needs arising from their disability.

10. The code of practice ^[52] for the ASL Act, describes its provisions.

The Children and Young People (Scotland) Act 2014

11. Community Planning Partnerships have been working to implement the Getting it right for every child GIRFEC approach since 2010. Aspects of the policy have now been included in the Children and Young People (Scotland) Act.

12. Wellbeing is at the heart of the GIRFEC ^[53] approach and the Act defines wellbeing under eight indicators - safe, healthy, achieving, nurtured, active, respected, responsible and included (often shortened to SHANARRI). This provides a common language for practitioners working with children and families.

13. The Act recognises that practitioners within universal services are key to promoting, supporting and safeguarding the wellbeing of all children. It places a duty on health boards and local authorities to make arrangements for every child to have a Named Person. The Named Person is a professional point of contact to support children and families when there is a wellbeing need and to act as a point of contact for other practitioners who may have a concern about a child's wellbeing. This means that a network of support can be developed around the child and family when extra support is needed.

14. A key principle of GIRFEC is that each child, no matter what their needs, who requires support from a single universal service, or from several agencies, will have that support coordinated and recorded in a single child's plan. As part of developing a single planning process, the Act introduces the concept of the Child's Plan, to be used on a single or multi-agency basis. The child and family will be actively involved in the development and review of the plan.

15. The single planning approach will be used for all children, and will provide a framework for including the coordinated support plan where that is appropriate. The Act also provides new statutory functions for information sharing in a relevant and proportionate way where that is necessary to promote, support and safeguard a child's wellbeing.

16. The Act introduces an amendment to the Children (Scotland) Act 1995 that places a requirement on local authorities to consider wellbeing in exercising certain functions. The amendment also requires local authorities to assess wellbeing for individual children which will have an impact on practice across children's services and for some adult services.

17. The Act also contains a requirement to report on outcomes for children in terms of their wellbeing. While the SHANARRI indicators are specific to each child, there are a range of indicators used to measure the impact of service planning and delivery at a school, authority and Community Planning Partnership level.

18. Most aspects of the Act will have an impact on how education authorities take forward their duties under other pieces of legislation and statutory guidance. The GIRFEC approach should support the aim of improving access to education and outcomes for disabled pupils.

19. The Act will also place similar duties on the proprietors of independent schools and the managers of grant aided schools.

The Equality Act 2010 (the Equality Act)

20. The Equality Act provides protection from discrimination, harassment and victimisation based on a range of 'protected characteristics'. These protected characteristics are defined in the Equality Act as race, sex, disability, sexual orientation, religion or belief, age, gender reassignment, pregnancy and maternity, and marriage and civil partnership. The provisions of the Act for schools do not apply in relation to age and marriage and civil partnership.

21. Guidance on the implications of the Equality Act for schools is available from the EHRC ^[54] .

22. The Equality Act sets out the duties in relation to disabled pupils. In particular, it introduces duties requiring schools to provide auxiliary aids and services for disabled pupils where reasonable. These could include for example, special equipment, large-print books and support from individuals such as classroom assistants and auxiliaries.

23. Guidance on the duty to provide auxiliary aids and services has also been published by the EHRC ^[55] .

24. Discrimination means, in a particular situation, treating someone with a protected characteristic less favourably than someone would be treated who does not have that characteristic. The treatment must be because of that characteristic. Harassment is unwanted behaviour towards someone with a relevant protected characteristic, which has the purpose or effect of violating the dignity of that person, or creating for them an intimidating, hostile, degrading, humiliating or offensive environment. Victimisation occurs when a person, with or without a protected characteristic, receives less favourable treatment because they have taken action related to the Equality Act, such as making, or helping someone to make, a discrimination claim. Part 2 of Chapter 2 of the Equality Act defines discrimination, harassment and victimisation in more detail.

Direct and indirect discrimination

25. Discrimination can be direct or indirect. Direct discrimination of a disabled pupil would be where that disabled pupil is treated less favourably than another because of his or her disability.

Direct discrimination would be where a pupil with HIV or with a severe disfigurement was refused admission to a school on the basis of that characteristic.

26. However, it is not discrimination to treat a disabled pupil more favourably than one who is not disabled.

For example, a pupil with dyslexia may be given additional time to complete a written examination and that may not be considered discrimination.

27. Direct discrimination can also occur by association, for example, when a pupil is treated less favourably because of his or her association with another person who has a protected characteristic (other than pregnancy and maternity). This might occur when a pupil is treated less favourably because her sibling, parent, carer or friend has a protected characteristic, such as disability.

28. Direct discrimination can also occur by perception, for example, where a pupil is treated less favourably because it is mistakenly thought that he/she has a protected characteristic. This might occur when a pupil is treated less favourably because he is mistakenly thought to have an HIV infection.

29. Disabled pupils may experience indirect discrimination where a particular policy, as applied, disadvantages them (or would if it was applied disadvantage them).

A special school providing for learning disabled pupils has a policy which requires that pupils attending residential trips are fully continent.

The policy has the effect of discriminating against those who are not fully continent and excluding them from residential trips. If the reason for not being fully continent was due to a disability this would be indirect discrimination based on disability. It is permissible to indirectly discriminate where such discrimination is objectively justifiable but it is unlikely that the school would be able to justify the action here.

Discrimination arising from a disability

30. Discrimination arising from a disability occurs when a disabled pupil is treated less favourably not because of the disability itself but for a reason related to his/her disability and that treatment cannot be justified.

A pupil with cerebral palsy who is a wheelchair user is told that she will be unable to attend a school trip to a local theatre putting on a play she is currently studying in English, because the building is not wheelchair accessible. The pupil and her parents are aware that the play is also on at a theatre, which is accessible, in a neighbouring city. However, the school does not investigate this option. This is likely to be discrimination arising from a disability. ^[56]

School admissions and exclusions

31. Chapter 1 of Part 6 of the Equality Act relating to school education makes it unlawful for responsible bodies to discriminate against, harass or victimise a school pupil, or prospective school pupil, in relation to school admission. Refusal to admit a disabled pupil, or unreasonable treatment of the pupil once admitted could be considered discrimination if the treatment occurred because of the pupil's disability.

32. The Equality Act makes it unlawful for responsible bodies to discriminate against disabled pupils and prospective pupils in the provision of education and associated services in schools, and in respect of exclusions ^[57] . Appendix B provides some illustrations of the meaning of 'education and associated services').

Reasonable adjustments

33. In particular, the Equality Act requires education providers:

• not to treat disabled pupils "less favourably"; and
• to take reasonable steps to avoid putting disabled pupils at a substantial disadvantage. This is known as the reasonable adjustments duty.

34. The reasonable adjustments duty comprises three requirements which apply where a disabled person is placed at a substantial disadvantage in comparison to non-disabled people. These requirements involve ^[58] :

• changing a practice (for example, providing a pupil with dyslexia with a note of any homework required rather than requiring him to copy it down);
• making changes to the built environment (for example, providing access to a building) where it is reasonable to do so; and
• providing auxiliary aids and services (for example, providing special computer software or support from a classroom assistant).

35. However, the second duty above does not apply to schools ^[59] since changes to the physical environment of schools are covered by the Education (Disability Strategies and Pupils' Educational Records) (Scotland) Act 2002 and this guidance. Where the first or third requirement above involves the way in which information is provided then a reasonable step includes providing that information in an accessible format.

General Duty

36. The Equality Act also imposes a general duty on public bodies in Scotland ^[60] . These public bodies ^[61] include Health Boards, education authorities and managers of grant-aided schools. Proprietors of independent schools are not covered by the general duty. The duty known as the public sector equality duty requires public bodies to have due regard to three specified matters when exercising their functions regarding certain protected characteristics (see Chapter 1 paragraph 37). With regard to disability these three matters are:

• conduct prohibited by the Equality Act, such as unlawful discrimination, harassment and victimisation of disabled people;
• advancing equality of opportunity between people who are disabled and people who are not disabled; and
• fostering good relations between people who are disabled and those who are not disabled.

37. Preparing and implementing accessibility strategies can contribute to responsible bodies carrying out their broad duties under the Equality Act.

Additional Support Needs Tribunals for Scotland ( ASNTS)

38. Part 3 of Schedule 17 to the Equality Act extends the power of the ASNTS to include all disability claims cases, which covers discrimination, harassment and victimisation, for all Scottish schools. ASNTS has been hearing disability claims cases since March 2011. The reasons for making a claim have not changed.

39. The ASNTS hears cases involving education authorities, independent and grant-aided schools, and also children who may not have additional support needs (and therefore fall outwith the scope of the ASL Act 2004, as amended). Cases heard will be related to the provision of education and associated services, as well as those concerning admissions and exclusions.

Health and Safety

40. Education employers needs to ensure the health and safety of their employees and others, including any pupils with disabilities and additional support needs. This has to be balanced with the Equality Act in a way that maintains the rights of each group, whilst also ensuring that employees and pupils are not exposed to an unacceptable level of risk.

41. Whilst health and safety risks need to be reduced so far as is reasonably practicable, this does not mean removing all risk.

42. A sensible, proportionate risk management approach should help enable all pupils in education to have the same opportunities. This may be achieved for example, by working together with all concerned - teachers, pupils and carers, to make reasonable adjustments

43. Further HSE guidance is available at:

http://www.hse.gov.uk/services/education/special-educational-needs.htm

http://www.hse.gov.uk/services/education/school-trips.htm