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

Chapter 1: The meaning of disability

1. The Education (Disability Strategies and Pupils' Educational Records) (Scotland) Act 2002 (the Act) is concerned with the school education of pupils who are disabled and the education of children under school age, outwith schools who are disabled. This Chapter describes the meaning of disability as referred to in the Act and in the Equality Act 2010. It also explains the purpose of this guidance and summarises background legislation relevant to the Act. The Act, itself, is considered in Chapter 2.

Terminology

2. The Act uses the term 'pupils with a disability'. However, except when quoting from the legislation, the text in this guidance will refer to 'disabled pupils' or 'disabled learners', or their equivalent, as meaning 'pupils with a disability'. This usage is the same as that employed by the Equality and Human Rights Commission ( EHRC). The reason EHRC uses the term 'disabled people', rather than 'people with a disability', is that it supports what is known as 'the social model of disability'. In this model disability is seen as resulting from the interaction between people and their environments rather than as being solely the property of the individual which the term 'pupils with a disability' implies.

3. Using the term 'disabled pupils' or 'disabled learners' acknowledges that people do have medical conditions, impairments and difficulties but stresses that society can do much to lessen their impact.

4. The Act also uses the term 'pupil'. A pupil is a child or young person of any age for whom education is or is required to be provided. A pupil includes a child who is under school age and is provided with school education at a place other than a school. Provision can be made by a pre-school, primary, secondary or special school or independent or grant-aided school.

The meaning of disability

A person (P) has a disability ^[1] 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.

5. Disability was defined originally by the Disability Discrimination Act, 1995, which has been repealed and replaced by the Equality Act, 2010 ^[2] . The Equality Act harmonises discrimination law by providing a legislative framework to protect the rights of individuals and advance equality of opportunity for all; to update, simplify and strengthen the previous legislation; and to deliver a simple, modern and accessible framework of discrimination law which protects individuals from unfair treatment and promotes a fair and more equal society.

6. The Explanatory Notes which accompany the Equality Act ^[3] provide assistance in understanding the legislation although they are not themselves part of the Equality Act.

7. The main sources of legislation relating to disability are thus the Equality Act and, in the case of schools in Scotland, the Act, as discussed in detail below.

Disability

8. The definition of disability covers physical impairments, which include sensory impairments. It also covers mental impairments which include learning difficulties and an impairment resulting from a mental illness. In the latter case the mental illness need not be 'clinically well-recognised' ^[4] but it must still have substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities. Each of cancer, HIV infection and multiple sclerosis is a disability as is severe disfigurement (Equality Act, Schedule 1, paragraphs 3 and 6).

9. Disability also covers those with a progressive condition, such as muscular dystrophy, which leads to a person having an impairment which will in the future have a substantial adverse effect on the person's ability to carry out normal day-to-day activities (Equality Act, Schedule 1, paragraph 8).

10. The definition of disability can include what may be termed hidden disabilities such as dyslexia, autism spectrum disorder ( ASD) and speech and language impairments. Appendix1 sets out the relationship between the Equality Act and the Education (Additional Support for Learning) (Scotland) Act 2004 (the ASL Act) and sets out a number of the factors which may contribute to an additional support need. Where these factors also meet the criteria of a disability then the pupil may also be considered to have a disability.

11. The effect of the impairment must be substantial and have an adverse effect; that is, more than minor or trivial, as having an impairment does not necessarily mean that a person is disabled by it. For example, a child may have asthma or diabetes but the condition may not be severe enough to have a substantial impact on the child's ability to carry out everyday activities. In that case the child would not be disabled.

12. An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned, if measures are taken to correct it and, but for these measures, the impairment would be likely to have that effect. For example, a person with a significant hearing loss may be able to hear reasonably well with hearing aids but without them would have little functional hearing. That person would be disabled. However, a person with poor eyesight which is corrected by spectacles or contact lenses is not deemed to be disabled on account of the eyesight impairment (Equality Act, Schedule 1, paragraph 5).

Long-term effects

13. The meaning of 'long term effects' is covered in Schedule 1 of the Equality Act ^[5] .

Long-term effects

2 (1) The effect of an impairment is long-term if -

(a) it has lasted for at least 12 months,

(b) it is likely to last for at least 12 months, or

(c) it is likely to last for the rest of the life of the person affected.

Purpose of guidance

14. This guidance ^[6] provides advice to responsible bodies on how they meet their duties under the Act to prepare Accessibility Strategies to improve, over time, access to the curriculum, physical access and access to school information, and in particular on:

• the content of their accessibility strategy;
• the form in which it is to be produced; and
• the people to be consulted in its preparation.

15. For the public sector in Scotland, the responsible body is the local authority, referred to in the Act as the 'education authority'. However, for the purpose of preparing and implementing their accessibility strategies, education authorities should note that they will require to co-operate with other agencies such as social work services, NHS Boards, youth services and third sector organisations in their area. It is also important to consult with pupils (and not just disabled pupils), parents/carers and education staff.

16. The responsible body for independent schools is the proprietor. The responsible body for grant-aided schools is the manager of the school.

17. This guidance updates and replaces guidance published by the Scottish Executive in 2002 Planning to Improve Access to Education for Pupils with Disabilities: Guidance on Preparing Accessibility Strategies. ^[7]

Overview of education legislation

18. 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 at Appendix F but reference should be made to that original legislation and any accompanying advice where more detail is required.