Disability discrimination law explained

Written by: Nabil Dance | Published:
Image: Adobe Stock

Disability discrimination and equality legislation have greatly strengthened the protection of pupils against discriminatory treatment since the mid-1990s. Nabil Dance provides a basic introduction to some rules and how they affect primary schools

As a teenager, I vaguely recall the first substantial discussion of disability discrimination in the media which was sparked by incidences of blind customers being banned from bringing guide dogs into convenience stores.

To its credit, the government implemented legislation in 1995 to prevent precisely this kind of treatment. The UK was one of the first states to adopt anti-discrimination law, and it would go on to ratify the United Nations Convention on the Rights of Persons with Disabilities in 2009.

In terms of how they treat disabled persons, schools, the media, companies, political parties, and the public at large have significantly changed since then. The law, too, has evolved to further reinforce this change. The Equality Act of 2010, and other legislation, have placed numerous obligations on schools relating to their treatment of disabled pupils.

While the law itself emphasises a range of protected characteristics, such as race, religion, and sexual orientation, the focus of this article is on pupils’ disabilities.

What is a disability in legal terms?

Without clear definitions, the law would be meaningless. To the general public and the teaching profession, it can be very confusing when people realise that the law defines what a disability is. It is crucial to first consider whether a pupil falls within the definition.

The law (Equality Act 2010) defines a disability as “a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”. All elements of this definition must be met for a pupil to qualify as disabled within the meaning of the law. In reality, this is a very low hurdle for a pupil to overcome in any event.

In legal terms, the phrases disability and special educational needs (SEN) are completely distinct. And certain impairments are excluded, such as a pupil’s tendency to set fires. However, a SEND tribunal judgement in 2019 (first-tier) makes it clear that a tendency to physically abuse others may qualify as an impairment (C&C v Governing Body of a school, SSE, and the National Autistic Society, 2019, AACR 10).

Forms of unlawful discrimination

The law (Equality Act 2010) prohibits six types of discrimination in schools, which can be summarised as:

  • Direct discrimination: Less favourable treatment because of the disability.
  • Indirect discrimination: Schools must not do something for all pupils that is likely to have an adverse effect on disabled pupils.
  • Discrimination arising from disability: This involves treatment because of something that is a direct result of the child’s disability.
  • Harassment: The Department for Education guidelines (DfE, 2013) use an example of shouting at a child for not being able to concentrate or keep up with work in class.
  • A failure to make reasonable adjustments: Schools must take reasonable steps to avoid placing a pupil at a disadvantage. This is an anticipatory duty.
  • Victimisation: In summary this involves treating a disabled pupil less favourably because their parents are involved in a disability discrimination complaint.

Reasonable adjustments

Each form of discrimination has its own definitions, principles, and limitations but, generally speaking, failure to make reasonable adjustments is the most complex and contentious area.

Schools are expected under the Equality Act 2010 to provide an “auxiliary aid”, or service, where it would alleviate any substantial disadvantage, which the pupil may face compared to their non-disabled peers.

Auxiliary aid has no legal definition but the DfE (2013) lists examples as hearing loops, adaptive keyboards, and special software. Schools are required to provide such aids and services where they are not supplied through an Education, Health, and Care Plan (EHCP) or other source.

Public Sector Equality Duty

Schools are required (Equality Act 2010 ) to have “due regard” to the need to eliminate discrimination towards disabled pupils, advance equality of opportunity for them, and foster good relations between them and non-disabled pupils. This is part of the Public Sector Equality Duty, which applies to how a school’s functions are carried out.

Schools must under the Equality Act 2010 (Specific Duties) Regulations 2011 publish information about how they will comply with this specific duty, and to prepare and publish equality objectives. I sincerely hope that this information is already part of your school’s publicly available documentation.

Furthermore, there is a requirement under the Equality Act 2010 to publish an accessibility plan specifying how the school plans to, in summary, improve the availability of accessible information to those with disabilities, improve the school’s physical environment to support disabled pupils, and increase their participation in the curriculum.

Protecting your school and its pupils

There are numerous ways to adequately support pupils and simultaneously protect your school. Follow mandatory government guidelines at all times, and optional guidance where feasible, such as Equality Act 2010: Advice for schools (DfE, 2013), and Statutory policies for schools and academy trusts (DfE, 2019)

The Equality and Human Rights Commission also has technical guidance (ECHR, 2019) and a code of practice (ECHR, 2011), which are useful.

The manner in which you handle parental complaints of this nature is key, and I would refer you to my previous article which includes some useful strategies for tackling them (Dance, 2022a).

Ensure that all policies and key documents have been planned, reviewed, and implemented, including your accessibility plan, and policies for SEN and disability, equality information and objectives, and so on. My previous article on school policy compliance will give you some tips on planning and developing strong policies (Dance, 2022b).

Take steps to ensure that no school policies, or other official documents, contradict mandatory government guidelines or the law. Likewise, take care to ensure that they do not conflict with each other, for instance, your accessibility plan, SEN and disability policy, or admissions policy.

Finally, you may wish to consider having staff training on the Equality Act 2010 in order to help your school on its journey towards a stronger level of consistency. I would expect governors to display a working knowledge and to apply it to decision-making in meetings as well.

‘Bloody nose’ cases

With the growth of social media, and the subsequent wealth of information available to families, you will inevitably encounter parents with what can only be described as an activist personality. They will examine your school documentation closely and may or may not have a basic understanding of the law.

A “bloody nose” case – a phrase of my own – is where parents use a disability discrimination complaint or tribunal claim as an excuse to punish the school and freely admit this to certain individuals, including lawyers like myself.

This scenario tends to arise where the family feels that the school did not deal with a specific event in the past adequately. The sole purpose is to, metaphorically speaking, give the school a bloody nose – i.e. enact retribution.

These cases can waste an immense amount of time for senior management over the course of say 12 months, particularly for state-maintained schools who will have to continually liaise with the local authority during the life cycle of a tribunal claim.

While they are a miniscule minority, I would strongly advise taking any appropriate steps to avoid any escalation to this stage, which, in my experience, takes years for parents to resort to. If you have taken all possible steps, and the parents are still pursuing a tribunal claim, continue supporting the pupil but do not expect the parents to give up their claim.


Disability discrimination can be very complex with lots of definitions, principles, requirements, and exemptions. This article can only provide some of them, but these tips will help to strengthen your school’s overall strategic position.

Disability discrimination can remain within a school’s internal complaints procedure, or escalate to the aforementioned specialist tribunal, which heard 110 claims in 2020/21 – 59% of those claims were upheld in the parents’ favour (MoJ, 2021).

Disability discrimination claims can be incredibly adversarial – a single omission, error, or disagreement with a family can escalate into tribunal litigation. Carefully planning, adopting, and implementing a pro-equality school culture will greatly minimise the chances of receiving such complaints from parents.

  • Nabil Dance is an educational lawyer who advises parents and schools in England and Wales. You can contact him via nabildance@mail.com.The contents of this article do not constitute legal advice and are provided for informational purposes only. Read his previous articles for Headteacher Update via https://bit.ly/htu-dance

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