The DDA

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The DDA

• Disability Discrimination Act 1995
• Amended by the Special Educational Needs and
  Disability Act 2001 (SENDA) to apply to education
  and schools

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Title
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Responsible Bodies

• Imposes obligations on responsible bodies
• For an independent school, the responsible body
  is the proprietor
• No special rules relating to independent schools
• But the limited case law relates mostly to
  maintained schools

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SENDIST

• Special Educational Needs and Disability Tribunal
  (SENDIST)
• SENDA extended the powers of the old SENT
• SENDIST hears complaints by parents of
  discrimination by responsible bodies

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Complaints

• DDA complaints can thus be made directly about an
  independent school

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SENDIST powers

• Can make any order apart from payment of
  compensation
• Can thus make declarations as to unlawful conduct
  or order eg training or an apology
• Parent/Responsible Body can appeal to High Court
  against a decision by SENDIST

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Disabled person

• Wide definition
• Physical or mental impairment which has a
  substantial and long-term adverse effect on
  ability to carry out normal day to day activities

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Substantial

• More than minor or trivial

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Long term

• More than a year

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Normal day to day activities

• Listed in the DDA
• Include
• Manual dexterity/physical co-ordination
• Continence
• Speech/hearing/eyesight
• Memory or ability to concentrate, learn or
  understand

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Examples

• Autism
• ADHD
• Dyslexia
• MLD
• SLD

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Effect of medical treatment

• Does not impact on whether a person is disabled
  other than in relation to glasses/eyesight
• Thus, eg, Ritalin controlled ADHD can still be a
  disability

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Unlawful discrimination

• Two types
• Unjustified less favourable treatment for a
  reason related to disability
• Unjustified failure to make reasonable
  adjustments to ensure that disabled pupil not
  disadvantaged compared to non-disabled peers

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Situations where it applies

• Admissions
• Exclusions
• Education and Associated Services
• i.e. pretty much all educational aspects of
  school life

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Less favourable treatment

• Needs only be marginally less favourable
• Can be in a decision (eg to exclude)
• Or in a policy (eg in relation to school trips)

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Reason related to disability

• This is not about whether you would have treated
  a non-disabled person the same
• i.e. not the same as for race or sex
  discrimination

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Questions

• What was the less favourable treatment?
• What was the reason for it?
• Was that related to the disability? (need not be
  the cause, or even a major factor)

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Example

• Two boys throw stones
• Both excluded
• Treatment exclusion
• Reason stone throwing
• Related to disability ?
• If yes, then potentially unlawful discrimination

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Justification

• Discrimination can be justified
• But not if there were reasonable steps which
  should have been taken to try and avoid the
  situation (eg to try and prevent the conduct
  which led to the exclusion)

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Permitted selection

• Less favourable treatment is justified if it is
  the result of a permitted form of selection

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Knowledge?

• Lack of knowledge of disability is only an answer
  if the RB did not know and could not have been
  reasonably expected to know and
• Failure to take a reasonable step was
  attributable to that lack of knowledge

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Reasonable steps

• Obligation to take reasonable steps to prevent
  person being placed at a disadvantage compared to
  non-disabled pupils
• Does not require alteration of premises of
  physical features nor the provision of auxiliary
  aids and services

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Auxiliary aids and services

• No clear judicial view
• Cases have been in the context of child with
  statement of SEN in maintained school
• But reasonable steps likely to include, policies,
  trips, teaching resources, staffing, etc

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Cost

• Disability Rights Commission Code of Practice
  says independent schools can charge for
  reasonable adjustments
• But that pre-dates the decision of the Court of
  Appeal against Ryanair

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