Equality Act: new auxiliary aids duty applies to schools from 1st September
The Equality 2010 replaced previous equality legislation when it was introduced and sought to provide a single, consolidated source of discrimination law, covering all types of discrimination deemed unlawful. With regard to disability and education (schools), the Act drew upon provisions in the former Disability Discrimination Act (DDA) that most schools are very familiar with. It also introduced changes that school leaders are likely to have received training or information on.
The DfE has also published non-statutory advice for schools on how to fulfill their duties under the Act (June 2012) and is due to publish an updated version shortly.
Disability specific information is outlined rather briefly in this advice. For more detail, the Equality and Human Rights Commission (EHRC) publication, Education Providers: schools’ guidance is a better source.
This guidance is also due for an update shortly, and will be available in online and printable formats. School leaders and SENCOs will be particularly interested to read about new requirements pertaining to the introduction of the so called ‘third requirement’ of the reasonable adjustments duty. From September this extends the reasonable adjustments duty and will require that schools provide auxiliary aids and service to disabled pupils.
Currently, schools – and local authorities – have to meet the ‘first requirement’ of the reasonable adjustments duty (and this is anticipatory) to make reasonable adjustment in relation to provisions, criteria or practice which may put a disabled pupil at a substantial disadvantage. They also need to plan to increase access to premises and the curriculum – the so called ‘second requirement’ of the reasonable adjustments duty.
The ‘third requirement’ refers to auxiliary aids (and services) a school will need to provide for a disabled pupil ‘where ... but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled.’ In instances of substantial disadvantage, a school will need to take appropriate action to provide the relevant auxiliary aid.
Auxiliary aids 'already in place'
Although some concerns have been expressed about the introduction of the new duty and the potential burden it may place on individual schools, the DfE’s view is that most disabled children are already provided with the auxiliary aids they need, for example by the local health service or the local authority (via statementing or education and health care plans from 2014). It also thinks that many schools and local authorities already provide disabled pupils with relevant auxiliary aids without knowing that they are doing so, and considers that many aids are also relatively straightforward and inexpensive to supply.
Potential concerns for schools and parents
This confidence may not, of course, always be shared by schools or parents. Schools may be concerned, for example, that a disabled pupil without special educational needs may require an expensive piece of equipment to access the curriculum or a significant level of personal care, and that they may be obliged to provide this with through their own resources. This may seem like scaremongering, but concern is legitimate at a time when schools are finding it difficult to draw on resources from local authorities and clarity regarding local education and health service responsibilities for the provision of aids is lacking because of overriding anxieties about the need to make budget cuts.
Some parents may also be concerned that a new requirement for schools to provide auxiliary aids where it is reasonable to do so lacks specificity and opens up contentious ground where a school/ local authority and health authority may argue that it is someone else’s responsibility. Again, this may sound like scaremongering, but many parents of disabled children already have experience of battling for resources that they thought their child should be entitled to.
These concerns might have been addressed if the DfE had decided to support the duty with regulations listing aids and services that school would be expected to provide for a disabled pupil. It chose not do this, arguing that it would not be practical to list all of the possible aids and services that regulations would cover, and that such a listing is unnecessary anyway. Whether this is the right approach to have taken will only become clear in the fullness of time (the department is keeping its decision under review). It makes sense in the way that it recognises that reasonable adjustments with regard to the provision of aids and services will need to take of individual facts and specific school circumstances.
Determining whether adjustments are reasonable
On the other hand, it seems unfortunate that the way to determine whether adjustments – the provision of aids and services – are reasonable will be through a formal complaints process (First –tier Tribunal (SEND) where the claim relates to Part 6 of the Equality Act (education)). Decisions made by tribunals will help to clarify the responsibilities that schools may have, but it might be more helpful and positive if the next update of the EHRC’s Education Providers: schools’ guidance includes more exemplification of the kinds of aids and services that schools could be reasonably expected to provide for disabled pupils. It would be good too if new guidance could be available for schools to digest before the auxiliary aid duty comes into force.