Equality Act 2010 – discrimination and your rights

When are you protected from discrimination?

If someone is treated unfairly because of their disability, or because of something arising from their disability, this may be disability discrimination.

The following information may be helpful.  If you require additional casework support please contact our SNAP Cymru discrimination helpline.  ( please leave a message and your contact detail if asked to do so and an advisor will return your call)

discrimination helpline: 0300 222 5711

email: discrimination@snapcymru.org

The Equality Act 2010 protects you from discrimination by:

• employers
• businesses and organisations which provide goods or services like banks, shops and utility companies
• health and care providers like hospitals and care homes
• someone you rent or buy a property from like housing associations and estate agents
• schools, colleges and other education providers
• transport services like buses, trains and taxis
• public bodies like government departments and local authorities.

There are nine protected characteristics in the Equality Act, Disability is one of the protected characteristics. Discrimination which happens because of one or more of these characteristics is unlawful under the Act.

A child or young person is disabled under the Equality Act 2010 (section 6) if they:
‘have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. This is actually a low test to meet as “substantial” means more than minor or trivial and “long term” means lasting more than one year or likely to last more than one year.’

Not all children or young people with special educational needs will be disabled and not all disabled children or young people will have special educational needs. The vast majority however will fall under both legal definitions. The definition is wide and can cover physical or mental health problems, as well as conditions such as dyslexia or autism.

The ‘responsible body’

A ‘responsible body’ is a LA or school/college governing body and is legally responsible for any discrimination, harassment and victimisation carried out by its employees. Early years settings, schools, colleges and local authorities (“LAs”) have clear legal duties to act to prevent unlawful discrimination, whether directly or indirectly. They must ensure that they do not treat children and young people with disabilities less favourably than others.
A school’s duty to its pupils goes beyond just the formal education, it provides and covers all school activities such as extra-curricular and leisure. It does not matter whether a school knew about or approved of those acts. An employee of a school is personally responsible for their own acts of discrimination, harassment or victimisation whether or not the employer is also liable. However, an employee cannot be personally liable in relation to disability discrimination in schools.

The responsible body of a school must not discriminate against a pupil:

• In admissions
• in the way it provides education for the pupil;
• in the way it provides or doesn’t provide a benefit, facility or service;
• by not providing education for the pupil;
• by excluding the pupil from the school;

The law applies to what happens at break and lunch-times as well as to what happens during lessons and covers school related activities such as school clubs, after school clubs, sports activities and school trips.

‘Reasonable Adjustments’

The responsible body has a duty to make ‘reasonable adjustments’ – to change what they do or were proposing to do – to ensure a disabled child or young person is not disadvantaged.
This includes the provision of ‘aids and services’ to support a child or young person.  Making reasonable adjustments includes providing special aids such as equipment and sign language interpreters.
If a school has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it will be very difficult for them to show objectively that the treatment was justified.

Template letters
> Requesting Reasonable adjustments for your child 
The letter  can be altered to suit your child’s individual circumstances

Try to resolve your concerns informally

It’s often best to try to resolve your problem informally first. It may stop the problem getting worse and avoid the expense and stress of taking legal action. You should, however, be aware that there are strict time limits for taking legal action. It’s therefore best to act as early as possible.
You can do the following things if you’ve experienced unlawful discrimination:

• make a complaint
• try mediation or dispute resolution
• take court action.

Make a complaint

If you make a complaint, this could be the fastest way to get an apology or an informal remedy.  If you believe your child is disabled and requires reasonable adjustments to be made for them , you should ask the school to do this.  You can meet with them to discuss this or if necessary put the request in writing.  If reasonable adjustments are not made you could put this in writing using this template

> Formal complaint for a failure to make a reasonable adjustment

If you do feel your child has experienced discrimination despite you requesting reasonable adjustments, the first step would be to make a formal complaint using the school’s own complaints procedure. In your complaint, you should explain what type of disability discrimination you believe has taken place, and what action you think the school should take to remedy it. The Complaint should be sent to the Head Teacher and to the Schools Governing Body.  You school will publish details of its complaint procedure.

If the complaint does not resolve matters, you could choose to bring a claim to the First-tier Tribunal (Special Educational Needs and Disability Tribunal Wales ) (the “SENTW”).
However, it is worth considering whether a disability discrimination claim is the best path of action in your individual circumstances.
Discrimination claims are ‘backward looking’, because they focus on a past event of discrimination rather than looking forward to what support is needed. You may prefer to youse the SEN framework to access the appropriate support for your child.

Bringing a claim of Discrimination

If you are still unhappy despite making a complaint to the school and feel your child is being discriminated against, a claim of disability discrimination can be bought against an early years setting, school, college or your local authority. If the claim against a school was successful, it might be ordered to:

• Arrange training for school staff
• Change school policies or guidance
• Provide extra tuition, to make up for lost learning
• Provide a written apology
• Provide trips or other opportunities to make up for activities the child or young person may have missed
• Make reasonable adjustments to accommodate the pupil’s disability
• Change the location of lessons or activities within the school
• Where a child had been refused entry to an independent school in a manner that was discriminatory, the school could be ordered to admit the child or young person
• If a child was permanently excluded and this was found to be discriminatory, the school could be ordered to re-admit the child or young person.

The following things cannot be ordered:

• Financial compensation
• Physical alterations to school buildings
• The dismissal of a particular staff member

Who is the claim against?

A claim of disability discrimination against a school of any type (whether state funded or independent), or against a maintained nursery, can be made to the First-tier Tribunal (Special Educational Needs Tribunal Wales) (SENTW). You can find information about discrimination appeals on the tribunal’s website. A claim against a private nursery, a further education college or a local authority would need to be brought in the County Court. You do not need to have a lawyer to go to the SEN Tribunal and the vast majority of parents do not have any representative at their appeals.

Help and casework support and advice is available from SNAP Cymru, please contact us on:

• Discrimination helpline 0300 222 5711
• or email: discrimination@snapcymru.org

SNAP advisors can help you communicate with the school to request reasonable adjustments and if this fails to help you prepare an appeal.
You may also be able to get help preparing your appeal from the following places.

Legal aid
If you are on a low income or receiving certain types of benefits, you may be eligible for legal aid. You should check https://www.gov.uk/check-legal-aid to see if you qualify.

• However you would need to have an monthly gross income is less than £2,657 (although this is higher for families with more than four children); or
• You are in receipt of Income Support, income-related Job Seeker’s Allowance, Employment and Support Allowance, Guarantee Credit or Universal Credit; and
• Your disposable capital (savings and property) is less than £8,000

The type of legal aid available in the Tribunal is known as ‘legal help’. A parent or young person eligible for this will receive support from a solicitor to prepare the case, it does not cover having a representative to attend the hearing. If you think you might qualify for legal aid and want to apply, you must fill in this online form with details of your income.

Things you should think about before taking action

If you think you’ve experienced unlawful discrimination and you want to take action about it, you’ll need to establish the facts of your case. This will help you decide whether unlawful discrimination has happened and also support your case when you take action.
Thinking about the following things will help you establish the facts of your case:

• who is the person or organisation who may have discriminated aginst you
• what exactly happened
• when and where did it happen
• did anyone see it happen
• what disadvantage or harm did you suffer – without a disadvantage, your discrimination claim would probably not succeed
• do you have any specific examples of unfair treatment
• why do you think you were treated unfairly in each of these situations
•  have you experienced or complained about discrimination before

Further help and information

To request assistance you can email the legal team at the Equalities and Human Rights Commission Wales

EHRC support Wales
Telephone: 0161 829 8140
Email the legal support team in England and Wales
Equality Advisory & Support Service
www.equalityadvisoryservice.com
https://www.equalityhumanrights.com/en/publication-download/what-equality-law-means-you-education-provider-wales

Legislation
For the relevant Equality legislation on discrimination in schools see Equality Act 2010, Part 6 (on legislation.gov.uk, external link), Sections 84-89 and 98 and Schedule 10 (accessibility for disabled pupils), 11 (schools, exceptions), 13 (education, reasonable adjustments) and 14 (educational charities and endowments).
http://www.legislation.gov.uk/ukpga/2010/15/part/6

Further Education information 
For the relevant Equality legislation on discrimination in FE see Equality Act

Higher Education – Office of the Independent Adjudicator (OIA)
A student can bring a claim of disability discrimination against a university or higher education institution in England or Wales. A student would bring their complaint to the Office of the Independent Adjudicator (OIA) The student will usually have to have exhausted the internal complaints procedure. There are several issues that the OIA cannot hear complaints about, such as questions of academic judgment, but they can hear complaints of discrimination. If a student makes a complaint to the OIA within six months of the alleged discrimination, then the time limit for bringing an action in court is extended by three months.

Further information can be obtained from the OIA’s website

SENTW Special Educational Needs Tribunal Wales
Helpline: 01597 829800
Fax number: 01597 829801
E-mail: SENTW@wales.gsi.gov.uk
http://sentw.gov.wales/sentw-guidance-forms/claims-sentw/
http://gov.wales/docs//sentw/publications/150113-How-To-Make-A-Claim-Guide-for-Parents.pdf
How to Prepare a case statement – guidance for parents

Equality Advisory & Support Service

www.equalityadvisoryservice.com

SENTW – Special Educational Needs Tribunal Wales

Helpline:  01597 829800 ~ E-mail: SENTW@wales.gsi.gov.uk

http://sentw.gov.wales/sentw-guidance-forms/claims-sentw/

http://gov.wales/docs//sentw/publications/150113-How-To-Make-A-Claim-Guide-for-Parents.pdf

http://gov.wales/docs//sentw/publications/150113-Application-To-Make-A-Disability-Discrimination-Claim.pdf

http://gov.wales/docs//sentw/publications/150113-Disability-Discrimination-Claim-How-To-Prepare-A-Case-Statement-Guide-for-Parents.pdf