Centre for Studies on Inclusive Education

supporting inclusion, challenging exclusion

inclusive education in the UK – no discrimination on grounds of disability and special educational needs

Legislation

The following information reflects UK law before 1 October 2010, when the Equality Act 2010 came into force, and will be updated in due course. In the mean time please see the Equality Act 2010 page for further details.

The main laws relating to disability discrimination and to special educational needs in education are:

Definition of discrimination against disabled pupils and prospective pupils

According to the Disability discrimination Act 1995, as amended by the Special Educational Needs and Disability Act 2001, a responsible body discriminates against a disabled person in education if (section 28B(1)):

(a) for a reason which relates to his disability, it treats him less favourably than it treats or would treat others to whom that reason does not or would not apply; and
(b) it cannot show that the treatment in question is justified.

The Act states that in failing to take a particular step, the responsible body does not discriminate against a person if this was because it did not know that the person was disabled (section 28B(3) and (4)). Less favourable treatment is justifiable if it results from a permitted form of selection or if the reason for the failure is “both material to the circumstances of the particular case and substantial” (section 28B(6) and (7)).

Obligations under the law

Disability discrimination in education is unlawful. Schools must not treat disabled pupils less favourably than others. They must make “reasonable adjustments” to ensure that disabled pupils are not at a substantial disadvantage, and they must prepare school accessibility plans to show how they will increase access to education for disabled pupils over time. Section 28A of the Disability Discrimination Act 1995, as amended by the Special Educational Needs and Disability Act 2001 states:

(1)It is unlawful for the body responsible for a school to discriminate against a disabled person–

(a) in the arrangements it makes for determining admission to the school as a pupil;
(b) in the terms on which it offers to admit him to the school as a pupil; or
(c) by refusing or deliberately omitting to accept an application for his admission to the school as a pupil.

(2) It is unlawful for the body responsible for a school to discriminate against a disabled pupil in the education or associated services provided for, or offered to, pupils at the school by that body....

(4) It is unlawful for the body responsible for a school to discriminate against a disabled pupil by excluding him from the school, whether permanently or temporarily....

Section 28C of the Act, as amended by the Equality Act 2006, states:

(1) The responsible body for a school must take such steps as it is reasonable for it to have to take to ensure that–

(a) in relation to the arrangements it makes for determining the admission of pupils to the school, disabled persons are not placed at a substantial disadvantage in comparison with persons who are not disabled; and
(b) in relation to education and associated services provided for, or offered to, pupils at the school by it, disabled pupils are not placed at a substantial disadvantage in comparison with pupils who are not disabled.

(2) That does not require the responsible body to–

(a) remove or alter a physical feature (for example, one arising from the design or construction of the school premises or the location of resources); or
(b) provide auxiliary aids or services....

The disability equality duty

In 2006, the “disability equality duty” came into force, as introduced by the Disability Discrimination Act 2005. This puts a general duty on public authorities – including schools and further and higher education institutions – to promote disability equality. Regulations published under the Act put a specific duty on public authorities to prepare and publish a disability equality scheme which gives details of how disability equality is being promoted. Schools must have regard to the need to:

  1. promote equality of opportunity between disabled and other people;
  2. eliminate discrimination and harassment, promote positive attitudes to disabled people;
  3. encourage participation by disabled people in public life; and
  4. take steps to meet disabled people’s needs, even if this requires more favourable treatment.

A number of Codes of Practice provide details on how to meet these duties:

Segregation in special schools

Some pupils considered to have “special educational needs” (this does not include all disabled children) are assessed as needing a statement of special educational needs. These pupils should be included in mainstream schools provided that this does not conflict with parental wishes or affect the efficient education of other children (section 316 of the Education Act 1996, as amended by the Special Educational Needs and Disability Act 2001).

Under schedule 27 paragraph 3 of the Education Act, there are three conditions for complying with parental preference in the schooling of children with statements of special educational needs, namely that the school is suitable to the child’s “age, ability or aptitude or to his special educational needs”, that attendance is compatible with “efficient education for the children with whom he would be educated” and that attendance is compatible with the “efficient use of resources”. In fact, the law elsewhere recognises, in relation to all children, “the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure” (section 9, Education Act 1996). Re- emphasising this in the context of disabled children suggests an additional right to parents of disabled children to veto the inclusive education their child has a right to, and is in this sense discriminatory.

For further information on the education of pupils with special educational needs, see the Code of Practice on Special Educational Needs 2001 (PDF) and Removing Barriers to Achievement: the Government’s strategy for SEN.

Note: some of the documents on this page are in PDF format. In order to view a PDF you will need Adobe Acrobat Reader

Page last updated: Monday 05 August 2013

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