Inclusion and disability discrimination
We can help you to deal with issues which may arise around inclusion and disability discrimination for children with Special Educational Needs and Disabilities (SEND), and medical conditions. Find out more about the terms inclusion, disability discrimination and reasonable adjustments and also see practical advice about what you can do if you believe your child or young person may be disadvantaged in school or college.
- Identifying disability
- Disability inclusion
- Disability discrimination
- Reasonable adjustments
- Dealing with disability discrimination
- Inclusion and school trips
Identifying disability
There is no list of conditions which determine that a child or young person is disabled, and no diagnosis is needed.
According to the Equality Act 2010 a child or young person is disabled if they have a physical or mental impairment, which has a long-term and substantial adverse effect on their ability to carry out normal day-to-day activities.
A mental impairment may include:
- learning difficulties
- autism
- dyslexia
- speech and language difficulties
- attention deficit hyperactivity disorder (ADHD)
Long-term means a condition which lasts 12 months or more, and substantial means more than ‘minor’ or ‘trivial’.
Some specified medical conditions, are all considered as disabilities, regardless of their effect.
See the definition of disability under the Equality Act 2010 (GOV.UK).
Disability inclusion
Inclusive education (also called inclusion) is education that includes everyone, with non-disabled and disabled people (including those with SEN) learning together in mainstream nurseries, schools and colleges.
Under the UN Convention on the Rights of Persons with Disabilities (Articles 4 and 24) the United Kingdom has committed to the right to an inclusive education and the right to a mainstream education (including nurseries, schools and colleges) for disabled children and young people.
Inclusive education is one of the principles stated to underpin the SEND Code of Practice 2015, which says that mainstream schools must ensure that children and young people with SEN engage in the activities of the school alongside pupils who do not have SEN.
Part 6 of the Equality Act 2010 sets out the duties for education settings to make ‘reasonable adjustments’ for children and young people with disabilities.
Schools must provide detailed information about their arrangements for the admission of disabled pupils to the school and they must publish:
- an Accessibility Plan - explaining adjustments they can make and ongoing plans to improve access
- a SEN Information Report - explaining how they identify and support children with SEND
If you cannot find these on a school’s website, you can contact them and ask for a copy.
Most children with SEND will go to a mainstream school and are often supported by the York Local Offer and SEN Support.
Read more about support for children and young people with SEN in mainstream schools, from City of York Council.
Inclusive education and disability
Nurseries, schools and colleges must make reasonable adjustments to make sure that disabled children and young people are not substantially disadvantaged compared to their classmates.
The Equality Act 2010 sets out these duties. The Act does not override health and safety legislation and a school may still carry out risk assessments to ensure the safety of all pupils in a setting, or on school trips.
The Equality and Human Rights commission have prepared some useful guidance for schools about making reasonable adjustments for disabled pupils.
Inclusive education and medical conditions
The government guidance Supporting Pupils in Schools with medical conditions says that pupils at school with medical conditions should be properly supported so that they have full access to education, including school trips and physical education.
Schools should consider what reasonable adjustments they might make to enable children with medical needs to participate fully and safely on visits.
It is generally not acceptable practice to prevent children from participating, or create unnecessary barriers to children participating in any aspect of school life, including school trips, for example by requiring parents to accompany the child.
Schools can also seek advice from the Specialist Teaching Team at City of York Council.
Disability discrimination
If an organisation treats an individual differently because of SEND, there is a risk that they may be discriminating against the individual and family. This is a serious matter.
An organisation, such as a nursery, school or college, cannot simply state it didn’t know that a child or young person might have a difficulty.
Nurseries, schools and colleges must take steps to ensure disabled children and young people are not substantially disadvantaged due to their disability. These steps are known as ‘Reasonable adjustments’. View the government Equality Act 2010 Guidance for more information.
See further information regarding disability discrimination and the duties of education providers to not discriminate against pupils on the basis of their disability:
- Disability Discrimination in Education (Child Law Advice)
- Disability Discrimination - a guide to disability discrimination within the education setting (Kids)
- Disability Discrimination Appeals (Barnado's)
Reasonable adjustments
The SEND Code of Practice 2015 summarises the duties which educational settings have under the Equality Act, and says:
Nurseries, schools and colleges must not directly or indirectly discriminate against, harass or victimise disabled children and young people.
Nurseries, schools and colleges must make reasonable adjustments, including the provision of auxiliary aids and services, to ensure that disabled children and young people are not at a substantial disadvantage compared with their peers. This duty is anticipatory – it requires thought to be given in advance to what disabled children and young people might require and what adjustments might need to be made to prevent that disadvantage.
All aspects of school and college are covered, including:
- provision of education
- homework
- school trips
- exclusions
Schools and colleges must make reasonable adjustments to procedures, criteria and practices and by the provision of auxiliary aids and services. For example a child or young person might find it difficult to follow the school rules or comply with the behaviour policy. The law states that the school or college must make reasonable adjustments to their criteria, policies and practices.
Nurseries and post-16 providers must also make reasonable adjustments by making physical alterations.
Factors such as cost, health and safety requirements, and the need to maintain standards may be taken into account when considering whether a particular step is reasonable.
Schools and the local authority are not required to make physical alterations, but schools must publish accessibility plans - and local authorities must publish accessibility strategies - setting out how they plan to increase access for disabled pupils to the curriculum, the physical environment and to information.
Discrimination occurs when a school has not complied with its duty to take positive steps to ensure that a disabled pupil can fully participate in the education and other services that the school provides.
The Equality and Human Rights commission have prepared some useful guidance for schools about making reasonable adjustments for disabled pupils.
The Inclusion Advisor at the City of York Council can provide support when identifying what a school is expected to do. You can contact them on telephone: 01904 552983 for more information.
Dealing with disability discrimination
Schools have a legal duty under the Equality Act 2010 (Part 6) to take reasonable steps to avoid putting disabled pupils at a disadvantage, and pupils should not be discriminated against on the basis of protected characteristics such as disability or race.
If you feel your child is being disadvantaged you may have suggestions of how your child could be supported with adjustments. The first step would be to talk to the educational setting to explain your concerns and how you feel your child is being disadvantaged.
If you still have some concerns you could raise these with the head teacher, or make a formal complaint to the school and governing body. The school's own website will have information about their complaints procedure.
If you feel your disabled child has been discriminated against you could make a claim to the first-tier tribunal for disability related allegations, or a county court for any other allegations.
How to appeal
To make an appeal against disability discrimination, you'll need to complete a claims form. This must be received by the SEND tribunal within 6 months of the alleged discrimination.
To make an appeal you will need also to demonstrate that the child or young person is classed as being disabled.
You can find Special Educational Needs and Disability Tribunal forms on GOV.UK.
You can find more information about the procedure for disability discrimination claims on the IPSEA website.
For more information you can contact the SEND tribunal on telephone: 01325 289 350, or email: sendistqueries@hmcts.gsi.gov.uk.
Inclusion and school trips
The SEND Code of Practice 2015 says nurseries and schools must ensure that children and young people with SEN engage in the activities of the school alongside pupils who do not have SEN.
A school's SEN Information Report must include how children and young people with SEN are enabled to engage in activities available to children and young people in the school who do not have SEN.
The Children and Families Act 2014 (Section 35) says that schools and nurseries can only exclude a child from activities if:
- it is not reasonably practicable for them to be included
- being included would prevent them from receiving the support they need
- being included would prevent the efficient education of other children or the efficient use of resources
Planning and assessing risk
Depending on the type of school trip and levels of risk involved, schools will need to plan and assess risk appropriately. The government expects that schools plans are proportionate and sensible, focusing on how to manage genuine risks.
Some trips involved everyday risks such as falls and slips and will be covered by a school’s current policies and procedures; they can be considered as lessons in a different learning environment.
Some trips will not be covered by existing policies and will need some extra planning due to the location or type of activity.
Sometimes a school may just need to review its current plans or arrangements that were successful on previous trips. However, some trips will need detailed planning and risk assessments and informed approval of head teachers or governing boards.
See further guidance regarding school trips:
- Health and safety on educational visits (Department for Education)
- Guidance, activities, training and support for outdoor learning and educational visits (Outdoor Education Advisors’ Panel)
- Example educational risk assessments (Health and Safety Executive)
Talking to your school
If you have any concerns regarding inclusion or safety surrounding school trips, you may want to talk to your child’s teacher or the Special Educational Needs Coordinator (SENCO), it can be helpful to request a meeting.
The Outdoor Education Advisory panel offer guidance, activities, training and support for outdoor learning and educational visits for children with SEND, which might be useful when preparing your questions and concerns.
Before your meeting with school, have a look at the school’s SEN Information Report and SEN policy. Both should be on your child’s school website. The report should include information about how children in the school are enabled to take part in activities alongside their classmates without SEND.
You may wish to start by explaining how you feel your child is missing out or will not be having the same experience as their classmates, for example if you have been asked to accompany them on a trip.
Find out why or how the school reached their decision. It might be that you have some suggestions for how your child could be supported. Have they involved you in the risk assessment process?
If you still have some concerns you could raise these with the head teacher, or make a formal complaint to the school and governing body. The school's own website will have information about their complaints procedure. See our guidance about making a complaint.
If your child has an Education, Health and Care plan, does the support need reviewing? See our guidance about requesting an early review.
If you feel your disabled child has been discriminated against you could consider complaining to the SEND Tribunal.