Disability Discrimination in Education Solicitors — Reasonable Adjustments, SENDIST Claims & PSED

A person is disabled under the Equality Act 2010 (s.6) where they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. "Substantial" means more than trivial. "Long-term" means it has lasted (or is expected to last) 12 months or more. Some conditions are automatically classified as disabilities regardless of effect: cancer, HIV, and multiple sclerosis from diagnosis; severe disfigurement. Many conditions that schools may not think of as disabilities — ADHD, autism spectrum disorder, dyslexia, dyspraxia, anxiety, depression, and chronic pain — do qualify as disabilities for EA 2010 purposes. Where a condition qualifies as a disability, the school must make reasonable adjustments — even where the school does not think the pupil has SEN or an EHCP. A solicitor advises on whether a pupil's condition qualifies and whether the school's response is lawful.

Failure to implement an EHCP may constitute both a breach of the LA's statutory duty under Care Act 2014 s.42 (which is enforceable through judicial review) and disability discrimination under the Equality Act 2010. Where the EHCP specifies a reasonable adjustment (for example, a teaching assistant) and the school fails to provide it, putting the child at a substantial disadvantage, that failure is both a statutory breach and a failure to make a reasonable adjustment. A solicitor pursues both routes simultaneously: judicial review of the LA's failure to implement Section F of the EHCP; and a SENDIST disability discrimination claim against the school. The combination of both routes is often the most effective way to achieve swift implementation.

Yes — where the excluded behaviour is a manifestation of autism (or another disability), excluding for that behaviour may constitute "discrimination arising from disability" under EA 2010 s.15. The school must show that the exclusion was a proportionate means of achieving a legitimate aim — which is difficult to establish where the behaviour was caused by the disability, adequate support was not in place, and alternative strategies were not tried. A SENDIST disability discrimination claim can be brought in addition to (or instead of) the IRP challenge — and unlike the IRP, SENDIST can order that the pupil be reinstated and award financial remedy. A solicitor advises on running both the exclusion challenge and the disability discrimination claim concurrently.

SENDIST can: make a declaration that the school discriminated against the disabled pupil; order the school to take specific steps to remedy the discrimination (for example, implement the EHCP, reinstate the pupil, or change the policy); and order that compensation is paid (typically for financial losses caused by the discrimination — for example, the cost of alternative provision; travelling costs; private tutoring). SENDIST cannot award general damages for injury to feelings — but can award financial compensation for specific losses. A solicitor advises on the remedies available and prepares the evidence of loss. Where an injury to feelings award is also sought, a County Court claim alongside the SENDIST claim may be appropriate.

No — the Equality Act 2010 applies to all schools, including independent (private) schools (EA 2010 s.85). Independent schools must not discriminate against disabled pupils or applicants, and must make reasonable adjustments to avoid substantial disadvantage. Disability discrimination claims against independent schools are heard by the County Court (not SENDIST, which only covers state-funded schools and local authorities). County Court claims for disability discrimination can include: damages for injury to feelings; injunctive relief requiring adjustments; and declarations. A solicitor advises on the County Court claim process and the remedies available against independent schools.