When is an adjustment unreasonable?
Tracey Eldridge-Hinmers, a specialist education solicitor at Sinclairslaw, presents this guide to making reasonable adjustments for disabled pupils
The Equality Act 2010 applies to all schools, but nine years after its introduction many in the independent sector are yet to embrace it. As well as triggering parental complaints, this can result in costly and stressful litigation before the First-tier Tribunal.
You should start by grappling with the duty to make ‘reasonable adjustments’ for disabled pupils. Spare yourself pain by following our tips below.
Headteachers are not lawyers, nor would they wish to be! However, in this instance it helps to know some law. Familiarise yourself with key concepts in the Equality Act such as the definition of disability and the difference between direct and indirect discrimination. Be aware of the all-important duty to make reasonable adjustments, which requires you to take reasonable steps to remove the disadvantages a disabled pupil faces, putting them in the same position as their non-disabled peers.
Is a pupil disabled?
Decide whether a pupil is ‘disabled’ in the legal sense. This will be the case where there is a physical or mental impairment with a substantial (not minor) and long-term (likely to last for at least 12 months) adverse effect on the pupil’s ability to carry out normal day-to-day activities. In most cases, parents will know about the condition and will tell you. Alternatively, you may need to spot it yourself. Conditions such as ASD, ADHD, dyslexia and dyscalculia are accepted to be such impairments.
Identify the adjustment
Determine what is required to mitigate the adverse impact of the impairment.
In many cases parents will be able to tell you; they may have an Educational Psychology report recommending strategies. Otherwise, you will need to form your own view, perhaps obtaining expert advice.
The law doesn’t require you to do the utmost to remove disadvantages, you only have to do what’s reasonable. However, deciding what is reasonable in individual cases can be difficult. Consider: the effect of not making the adjustment; the financial and other costs of the adjustment; the resources of the school and the availability of financial or other assistance; the practicability; health and safety requirements; the interests of other pupils and prospective pupils. Whilst some adjustments can be onerous, much can be done at little expense.
Remember that the duty includes the provision of auxiliary aids and services, i.e. anything which provides additional support, to include teaching assistants, therapies and equipment. This is where we regularly see complaints, often when a school recommends that the child requires additional support, but then seeks to charge parents for the provision.
Do it for free!
It is unlawful for a school to charge for a reasonable adjustment in any circumstances, whatever the financial cost and however the school is funded. Cost is a factor that should be considered when deciding whether the adjustment is reasonable. However, having decided that an adjustment is reasonable, you must provide it at no additional cost to parents.
Know what is not expected
There are certain things you are not obliged to do. The law does not generally require you to remove or alter physical features and, even in the case of a disabled pupil, selective schools are entitled to insist on certain levels of academic ability and attainment, for admission purposes.
In the event of a challenge, it is vital you can demonstrate a rigorous decision-making process. Record your discussions and decision-making processes, list options and factors considered and give detailed reasons for the outcome.
It is advisable to: review parent contract documentation and school policies to ensure they reflect the law; ensure procedures are in place and staff understand the school’s reasonable adjustments duty; and consider appointing a governor with specific responsibility for SEND and equality matters.
Decisions about reasonable adjustments are usually highly fact-sensitive and the value of running a scenario past a professional cannot be overstated. Our specialist education lawyers have a wealth of experience in this complex area and our history of representing parents offers a unique insight into the issues that can arise when dealing with sensitive matters.
Contact Sinclairslaw and whatever your need, our expert team of solicitors can help with straightforward advice that you can trust.
T: 02088 914 488