Child B is aged 13. He has dyslexia and is a disabled person in terms of section 6 of the Equality Act 2010. His parents live in the catchment area for X School, a mainstream grant-aided school and applied for an S1 place for him to attend there after leaving primary school. Assessments of B’s needs were carried out by various professionals at X School. The School formed the view that B’s needs could not be met at X School without a substantial increase in their central funding, and refused to admit B as a pupil. His parents challenged the decision by way of a disability claim before the Additional Support Needs Tribunal (ASNT), which held that X School unlawfully discriminated against B by refusing to offer him a place at the school.
The ASNT considered whether or not there had been discrimination by X School in terms of Section 15 of the Equality Act 2010, in their refusal to offer B a place at the School. It would be unlawful discrimination arising from disability under section 15 of the Act, if an education provider such as X School treats a pupil unfavourably because of something arising in consequence of the pupil’s disability and cannot show that this is legally justified. The claim was also based on a failure by X School to make reasonable adjustments.
X School is also a public authority and is therefore subject to the public sector equality duties set out in section 149 of the Act and is a listed authority in terms of the Equality Act 2010 (Specific Duties)(Scotland) Regulations 2012 and so subject to those regulations.
The assessment of B was a key issue. The Tribunal rejected the school’s view on the level of support required to meet B’s needs, instead preferring the position set out in evidence by his current school (a mainstream secondary managed by the local authority). It would be reasonable for the school to plan on an anticipatory basis to meet B’s needs on the same basis as were currently being provided for by his current school.
In making their decision, the Tribunal made the following findings:
- there was a need for contingency planning within the school’s financial management to allow flexibility within the support for learning department;
- neither the policy on Assessing Children’s Educational Needs nor the Accessibility Strategy has been reviewed taking into account the public sector equality duties; and
- the school’s assessment of the available resources, both staffing and financial, was reactive, rather than anticipatory.
The Tribunal determined that X School had unlawfully discriminated against B on the basis of his disability and ordered X School to offer B a place for the coming academic year, and for them to comply with their reasonable adjustments duty in accordance with an up to date assessment of B’s needs.
Impact of the Decision
The decision is a reminder for all schools, (including public schools, grant aided schools and independent schools), that they should be planning for and taking account of the needs of their disabled pupils and potential disabled pupils. The duty to make reasonable adjustments is anticipatory and requires consideration when schools are setting budgets and planning resources.
In addition, for education authorities and grant-aided schools, their duties under the public sector equality duty and the specific duties, mean that they need to assess and review the impact of policies and practices, such as admissions policies and budgetary decisions.
Last updated: 07 Apr 2016