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Equality Act 2010: education changes

This page outlines changes to the education rules in the Equality Act 2010, compared with the Disability Discrimination Act 1995 (DDA). The changes do not necessarily apply to Northern Ireland.

Links:
Equality Act 2010
Government response to the Discrimination Law Review (pdf file, link to equalities.gov.uk), July 2008

'Justification'

The prevous justification test is replaced. Education providers now have to meet a higher threshold to justify treating someone less favourably for a reason related to their disability. The provider has to show that its conduct is a 'proportionate means of achieving a legitimate aim'. The new test also applies to other areas of the Equality Act such as employment. (Sources: sections 15 and 19 Equality Act 2010; Government response to the Discrimination Law Review, July 2008, para 11.22-11.28)

For more, see Objective justification defence.

The education provider has no justification defence for direct discrimination.

Remedying the Malcolm case

The Equality Act 2010 contains two new heads of disability discrimination, which are intended to address the House of Lords decision in London Borough of Lewisham v Malcolm. That decision severely limited the scope to make a claim for less favourable treatment. More on Remedying the Malcolm case.

Direct discrimination

No justification defence

The Equality Act 2010 abolishes the justification defence for 'direct discrimination'. Even before, direct discrimination was not justifiable in employment and most post-16 education. That approach has now being extended to other areas of education.
(Sources: s.13 Equality Act 2010; Government response to the Discrimination Law Review, July 2008, para 11.11)

Discrimination by association or perception

The general Equality Act 2010 definition of 'direct discrimination' in s.13 is intended to include direct discrimination because of another person's disability, or because of a perceived disability. In the Coleman case the European Court of Justice decided that discrimination and harassment by association (i.e. where it is someone else who is disabled) must be covered as regards employment. However, the Government has decided to extend this to services and education as well. For more, see Discrimination because of association, or perceived disability.

Reasonable adjustments

Auxiliary aids and services now included in pre-16 education provisions

From 1st September 2012 schools and LEAs have a duty to provide an auxiliary aid or service where reasonable. Previously, the reasonable adjustment duty for auxiliary aids and services did not apply to the pre-16 education provisions. The commencement order bringing the duty into force in September 2012 is SI 2012/2148.

See Equality Act in schools: Reasonable adjustments: Auxiliary aids and services.

The change was made at the House of Lords committee stage in January 2010 - HL Hansard 19/1/10 (link to UK Parliament website) from col 881).

The new duty was recommended in December 2009 by the Lamb Inquiry - see archived www.dcsf.gov.uk/lambinquiry/ (recommendation 51, see particularly para 6.42). Back in 2007 the inclusion of auxiliary aids and services in the Equality Bill as regards schools had also been recommended by the Disability Rights Commission; the DRC said evidence shows that there is a gap in provision for disabled children which can lead to barriers in participation in school life and difficulties accessing teaching and learning (A Framework for Fairness Response, page 21-22).

No 'justification' defence for failure to make reasonable adjustments

This is also enacted in the Equality Act 2010. The Disability Rights Commision had recommended that there should no longer be a 'justification' defence for failure to make reasonable adjustments where the defence still applied - i.e. for schools and some post-16 education institutions. The justification defence for reasonable adjustments has already been abolished in employment. Any concerns of the education provider etc were, said the DRC, adequately addressed by the provision that only 'reasonable' adjustments are required. Allowing a failure to make a reasonable adjustment to be justified is unfair and unnecessarily complicates the legislation. (A Framework for Fairness Response (on archived DRC website), p.28-29)

Adjustment duty becomes anticipatory

The Government believed that the Equality Bill was already drafted to as to make the reasonable adjustment duty 'anticipatory' in education (see from col 1450 in HL Hansard 27/1/10 (link to UK Parliament website)), as it clearly is for provision of services. Being 'anticipatory' means the duty is owed to disabled people generally rather than just an individual as and when they appear - it expects education providers to have done planning for the needs of disabled people.

However, doubt was expressed on whether the previous wording achieved this, and the Governement agreed amendments to Schedule 13 (Education: Reasonable adjustments) which make it clear that the reasonable adjustment duty is anticipatory (col 152-153 HL Hansard 2/3/10 (link to UK Parliament website) and col 1391). There is an exception for grant of qualifications by universities.

See Equality Act in schools: Reasonable adjustments: Duty is anticipatory.

'Substantial' now defined

For the reasonable adjustment duty to arise, there must be a 'substantial' disadvantage to the disabled person. 'Substantial' might mean 'very large' or it might mean 'more than minor or trivial'. The education Codes of Practice say that it means 'more than minor or trivial', but this is now to be confirmed by the legislation itself. S.212(1) Equality Act 2010 defines 'substantial' to mean 'more than minor or trivial'. The Government accepted an amendment to this effect by Lord Low (col 1339 HL Hansard 2/3/10 (link to UK Parliament website)).

In SCA Packaging v Boyle it was suggested in the House of Lords that, despite guidance such as the Codes, judges start with a clean slate when deciding what legislation means. This provision in the Equality Act is a very welcome clarification to help guard against unpleasant surprises if the meaning of 'substantial' is challenged in higher courts.

Cost of reasonable adjustments

S.20(7) Equality Act 2010 (added on 13th January 2010) makes clear that a person required to make a reasonable adjustment is not entitled to require the disabled person to pay to any of the costs of complying with the duty. (There is a limited exception for where the law expressly says otherwise.) HL Hansard 13/1/10 (link to UK Parliament website) at col 565.

See Equality Act in schools: Cost of reasonable adjustments.

Harassment

The Equality Act contains freestanding rights against harassment by education providers (ss. 85, 91 etc Equality Act 2010). Even under previous law though, harassment was likely to be unlawful under provisions against unfavourable treatment. For the new rules, see What is discrimination?: Harassment.

The general Equality Act definition of 'harassment' in s.26 is to apply. Accordingly, as with 'direct discrimination' above, it will include harassment related to another person's disability, and also harassment related to perceived disability. For more, see Discrimination because of association, or perceived disability.

Exam boards

Previously the application of a competence standard was not subject to the duty to make reasonable adjustments. However the reasonable adjustment duty normally applied apart from that, in particular to how the competence standard is assessed.

Under the Equality Act 2010 it will be for the regulator (Ofqual in England), to decide after consultation what cannot be reasonably adjusted. More: Exam boards (under Equality Act 2010)

Shift in burden of proof

The Equality Act harmonises the law by providing for the burden of proof in non-employment disability discrimination cases to be transferred to the respondent once a prima facie case has been made. The Equality Act rules for education are the same as those for employment: Proving discrimination: Burden of proof.
(Sources: s.136 Equality Act 2010; Government response to the Discrimination Law Review, July 2008, para 11.77-11.78)

Relationships which have ended

In the Equality Act the Government is outlawing discrimination against disabled people in the provision of education in respect of relationships which have ended, as part of a harmonisation measure across all equality strands;.
(Sources: s.108 Equality Act 2010; Government response to the Discrimination Law Review, July 2008, para 11.72-11.74)

Resolution of cases in Scotland

Disability discrimination in schools cases in Scotland are to be heard by Additional Support Needs Tribunals, rather than the sheriff courts. This will mirror the position in England and Wales. (Sources: Schedule 17 Equality Act 2010: Government response to the Discrimination Law Review, July 2008, para 6.91ff)

See Schools: Resolving disputes: Legal enforcement.


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Last updated 12th February, 2010 (part update 1st September, 2012)