Disability and the provision of auxiliary aids in schools
As of September 2012, the Equality Act 2010 (“the Act”) imposed a new duty on schools to make reasonable adjustments to provide auxiliary aids and services to disabled pupils. In December, the Department of Education issued accompanying non-statutory guidance on how schools can comply with the Act.
The duty requires a school to take reasonable steps to avoid the substantial disadvantage of a disabled pupil in comparison to non-disabled pupils. The key test is reasonableness and this is not defined in the Act, allowing for flexibility of application: what may be reasonable for one school to provide may not be reasonable for another given the specific circumstances. In contrast to the previous situation under the Disability and Discrimination Act, it is no longer possible for schools to justify a failure to make a reasonable adjustment; the question is only whether or not the adjustment is reasonable.
The Department of Education guidance includes specific advice relating to auxiliary aids and what might be considered ‘reasonable’. Factors a school should consider when assessing the reasonableness of an adjustment may include the financial or other resources required for the adjustment, its effectiveness, its effect on other pupils, and health and safety requirements.
Examples of auxiliary aids might include hearing loops, adapted PE equipment, adapted keyboards and special software. Cost will inevitably play a major part in determining what is reasonable and it is more likely to be reasonable for a school with substantial financial resources to make an adjustment entailing significant cost. Even so, many reasonable adjustments are inexpensive, involving a change in practice rather than the provision of expensive pieces of equipment or additional staff.
A school’s duty to make reasonable adjustments is also an anticipatory one. In addition to considering individual disabled pupils, schools must also consider in advance potential adjustments which may be needed for disabled pupils generally. It is not necessary to anticipate and make adjustments for every conceivable disability, merely to consider general reasonable adjustments as part of a strategic and wider approach to planning for disabled pupils.
Some disabled children may need auxiliary aids that are not directly related to their educational needs or participation in school life (for example, hearing aids which are necessary for all aspects of their life). It is unlikely to be considered reasonable for a school to provide such aids.
Many disabled children will also have a Special Educational Need (“SEN”), in which case aids may be provided through the SEN framework created under the Education Act 1996. The reasonable adjustments duties on schools are intended to complement the existing SEN provisions, whereby Local Authorities provide auxiliary aids to pupils with a statement of SEN. However, the fact that a pupil is supported under the SEN regime does not negate the school’s duty to make reasonable adjustments in addition. Equally, there is no assumption that if an auxiliary aid is not provided under the SEN regime then it must be provided as a reasonable adjustment.
The Equality and Human Rights Commission has also published guidance for schools on the new auxiliary aids duty. This offers further detail on issues for schools to consider when deciding whether a given adjustment is reasonable. Based on previous court and tribunal decisions under the equivalent Disability and Discrimination Act provisions, the guidance lists the following factors as being likely to be taken into account when considering what adjustments are reasonable:
- the extent to which support will be available to the pupil under the SEN framework;
- the school’s resources;
- the financial and other costs of making the adjustment;
- the extent to which the adjustment would be effective in overcoming the disabled pupil’s substantial disadvantage;
- the practicability of the adjustment;
- the effect of the disability on the individual pupil;
- health and safety requirements
- the need to maintain academic, athletic, musical, sporting and other standards;
- the interests of other pupils and prospective pupils.
It is possible that a school may find there are no reasonable steps that it needs to take to make its education, benefits, facilities or services more accessible to disabled pupils. However, this seems unlikely, and all schools would be advised to consider what changes can be implemented in order to comply with the law. If a school does decide that there are no reasonable steps to be taken, it would be advisable for them to record their reasoning so that, in the event of a challenge, the decision can be explained to a disabled child’s parents and, if necessary, a tribunal.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.