How can we help? Disability Discrimination Code of …...i Disability Discrimination Code of...

How can we help?The Equality Commission for Northern Ireland can give advice andinformation on the Special Educational Needs and Disability(Northern Ireland) Order 2005 (SENDO) through training, telephoneand textphone advice, booklets and leaflets or we can meet with you.

5 January 2006ISBN 1-903941-82-2

For further information, please contact us at:Promotion and Education DepartmentEquality Commission for Northern IrelandEquality House7-9 Shaftesbury SquareBelfast BT2 7DP

Telephone: 028 9050 0600

Textphone: 028 9050 0589

Fax: 028 9024 8687

E-mail: [email protected]

Website: www.equalityni.org

Disability DiscriminationCode of Practicefor Schools

NIA 275/03

Special Educational Needs and Disability(Northern Ireland) Order 2005

Schools

Disability D

iscrimination C

ode of Practice

i


Laid before the Northern Ireland Assembly by the Department ofEducation in accordance with Section 54A(4)(a) of the DisabilityDiscrimination Act 1995 (as amended by Article 41 of the SpecialEducational Needs and Disability (Northern Ireland) Order 2005).

Date 5th January 2006

NIA 275/03

This document is available in other formats upon request


ii

Published by the Equality Commission for Northern Irelandin 2006.

This Code of Practice was developed in partnership with theDisability Rights Commission, Great Britain. The EqualityCommission gratefully acknowledges the substantialcontribution made by the Disability Rights Commission to thispublication.

The Equality Commission gratefully acknowledges thecontribution made by the Department of Education indeveloping this Code of Practice.

This Code of Practice is available in a range of accessibleformats (for example in Braille, audio cassette, disk or otherformat) on request from the Equality Commission for NorthernIreland. If you would like a copy in an alternative formatplease contact:

The Equality Commission for Northern IrelandEquality House7-9 Shaftesbury SquareBelfastBT2 7DP

Telephone: 028 9050 0600Fax: 028 9031 5993Text Phone: 028 9050 0589E-mail: [email protected]: www.equalityni.org

ISBN 1-903941-82-2

Cover Photograph: The Equality Commission for NorthernIreland would like to thank, from left to right: Gail McAleenan(Oakwood Integrated School), Joshua McKinnell (FlemingFulton School), Alec Pinedo (Oakwood Integrated School),Amy Cameron (Fleming Fulton School).

The Code of Practice shall come into effect on such a day asthe Department of Education may by order appoint.Please contact the Equality Commission for further details.

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The Code of Practice applies to Northern Ireland

The Special Educational Needs and Disability (NorthernIreland) Order 2005 (SENDO) applies to schools and furtherand higher education institutions, including the teacher trainingand agricultural colleges and general qualification bodies.

This Code of Practice explains the duties placed upon schoolsonly.

This Code explains how SENDO makes it unlawful for bodiesresponsible for the provision of education and otherassociated services to discriminate against disabled pupilsand prospective pupils. SENDO makes it unlawful to treatdisabled people less favourably for a reason related to theirdisability: to make ‘reasonable adjustments’, to ensure, wherereasonable, education is fully accessible to disabled peopleand to ensure victimisation does not occur. The ‘reasonableadjustment’ duty is both an anticipatory and reactive duty.

The Special Educational Needs and Disability (NorthernIreland) Order 2005 is a new law, which took effect on 1stSeptember 2005.

Education can unlock the talents of everyone and provide anopportunity to develop an individual’s full potential. TheEquality Commission therefore welcomes the introduction ofthe Special Educational Needs and Disability (Northern Ireland)Order 2005 hereafter referred to as SENDO which is effectivefrom 1st September 2005. SENDO mirrors legislation broughtinto effect in Great Britain in September 2002 and fullyimplemented also on 1st September 2005. The aim of SENDOis to strengthen the rights of children with special educationalneeds to be educated in mainstream education and tointroduce unlawful disability discrimination legislation toschools, further and higher education institutions (includingteacher training and agricultural colleges) and to generalqualifications bodies.

This Disability Discrimination Code deals with the disabilitydiscrimination provisions relating to schools and has beenissued under Section 54A of the Disability Discrimination Act1995 (as amended by Article 41 of Chapter IV of Part III ofSENDO) and at the request of the Minister for Education.Separate publications will be available relating to the furtherand higher education and general qualification provisions.

Part 2 of SENDO has introduced new provisions and amendedaspects of special educational needs. This Code provides abrief overview of the key changes. The Department ofEducation’s publication entitled ‘Code of Practice on theIdentification and Assessment of Special Educational Needs(1998)’ and the Supplement to it (operative from 1stSeptember 2005) provide the detail surrounding the SpecialEducational Needs framework.

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Foreword

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SENDO makes it unlawful for bodies responsible for theprovision of education and associated services, admissionsand expulsions in schools to discriminate against disabledpupils and prospective pupils. SENDO makes it unlawful totreat disabled pupils and prospective pupils less favourably fora reason related to their disability. It introduces new duties tomake ‘reasonable adjustments’ and to ensure victimisationdoes not occur. The ‘reasonable adjustment’ duty is both ananticipatory and reactive duty.

This Code is a major tool in helping to achieve the aim of asociety where all disabled people can participate fully as equalcitizens. It aims to highlight when discrimination can occur,even if unintentional, and to give practical guidance andencourage good practice in delivering an inclusive educationservice. Its intention is ultimately to ensure that disabledpupils and prospective pupils have the same access to thehigh quality education service which is available to pupils andprospective pupils who are not disabled.

The Equality Commission undertook a wide rangingconsultation on the Code involving key stakeholders includingeducation providers, disabled people, trade unions, youngpeople, parents and representatives from the community andvoluntary sector. In response to the consultation exercise, anumber of changes have been made to the Code. TheCommission is grateful to all those who contributed to theconsultation exercise.

SENDO is intended to bring about significant changes ineducational provision and to achieve the recommendationsmade by the Disability Rights Task Force in its report inDecember 1999 ‘From Exclusion to Inclusion’ which statedthat

‘Inclusion of disabled people throughout their school andcollege life is one of the most powerful levers in banishingstereotypes and negative attitudes towards disabledpeople amongst the next generation. When disabled andnon disabled people are educated together, this sendspowerful messages to the whole community about thepotential for a truly integrated and diverse society’ 1

1 From Exclusion to Inclusion – A Report of the Disability Rights Task Force on CivilRights for Disabled People. December 1999.

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In order for SENDO to be effective and to achieve this vision itmust be implemented in a managed and strategic way both interms of adequate resources, training and evaluation. Centralto any management strategy is the dignity of the disabledpupil and prospective pupil. SENDO should be incorporatedinto the culture of the schools sector rather than be seensimply as a legal compliance matter.

The Equality Commission recognises that changes haveoccurred and that Education and Library Boards, schools andteachers are involved in inclusive practices particularly inpartnership with the special schools. Nonetheless, there ismore to be done to build a fully accessible, diverse educationsystem in Northern Ireland which realises the potential of allpupils. SENDO represents an opportunity to build upon theinclusive practices that are happening across the schoolssector. It is also an opportunity to review policies, procedures,practices, physical access, communication and attitudes toensure that unlawful disability discrimination does not happen.

This Code is necessarily comprehensive and detailed as it willassist in the interpretation of a new law for educationproviders in the schools sector in Northern Ireland. TheCommission has also produced a range of other information toassist with the understanding of rights and responsibilitiesunder SENDO. Contact the Commission for more details.

The Commission hopes this and all our publications will bewidely used and helpful.

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This Code focuses on the schools sector disabilitydiscrimination duties including the new planning duties andalso highlights changes to the SEN Framework. Otherpublications exist in relation to Further and Higher Educationand General Qualifications Bodies duties, as well as the SENframework, and planning duties.

Visual Overview of theStructure of SENDO

2 Making It Work. Removing Disability Discrimination Are you ready? A training pack forschools and LEAs. A partnership project led by the Council for Disabled Children andDisability Equality in Education supported by a grant from the Department for Educationand Skills Small Programmes Fund and the Disability Rights Commission.

2 Adapted from ‘Making It Work. Removing DisabilityDiscrimination Are you ready?’

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1 INTRODUCTION 1General comments 1

Background to The Special Educational Needs 2and Disability (Northern Ireland) Order 2005

The purpose of SENDO 3

The purpose of the Code 3

Status of the Code 4

Who the Code is for 5

How to use the Code 7

Keeping up-to-date with the Law 8

Statutory authority and national security 8

2 DEFINITION OF A DISABLED PERSON– WHO HAS RIGHTS UNDER SENDO 9Definition of ‘disabled person’ 9

Physical or mental impairment 10

Substantial adverse effect 10

Long-term effect 10

Effects that change over time 11

Past disabilities 11

Normal day-to-day activities 11

Effects of treatment 12

Pupils who wear spectacles 12

Pupils who have severe disfigurements 12

Progressive conditions 13

Genetic conditions 13

Excluded conditions 13

Pupils with a Statement of special 13educational needs

Further information on disability discrimination 14

ContentsPAGE

xii

3 SPECIAL EDUCATIONAL NEEDS 15The Law on special educational needs 16prior to SENDO

Aspects of the SEN not affected by SENDO 18

Changes in relation to special educational needs 19

Education in mainstream schools for pupils 19with special educational needs

Education and Library Board Advice and 20Information Service

The SEN Dispute Avoidance and Resolution 21Service’ (DARS)

Informing parents that special educational 21provision is being made

Assessment of special educational needs 21

Parents right of appeal to the Tribunal 23

The relationship between special educational 25needs and disability

4 OVERVIEW OF DUTIES AND RESPONSIBILITIESUNDER SENDO 27Disability discrimination outlined 27

Less favourable treatment 28

Failure to make reasonable adjustments 28

Limits to the duty to make reasonable adjustments 29

Auxiliary aids and services 29

Physical features of buildings 29

Triggers to making reasonable adjustments 30

Victimisation 31

Aspects of education covered by SENDO 32

Admissions 33

Education and associated services 33

Suspending or expelling a disabled pupil 35

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Who has responsibilities under SENDO? 36

Responsible body according to type of school 37

Responsible body according to role 37

School Boards of Governors 38

Education and Library Boards 38

Other bodies 39

The education provider’s legal responsibility for the 41actions of people working in schools

Unlawful agreements 45

5 LESS FAVOURABLE TREATMENT 47Definition of less favourable treatment 47

Deciding if less favourable treatment has occurred 48

Justification 48

A permitted form of selection 48

A reason that is both material and substantial 50

No reasonable adjustment could have been 51made

Who decides if treatment is less favourable 60

Anti-social behaviour 60

6 REASONABLE ADJUSTMENTS 61The duty to make reasonable adjustments 61

Substantial disadvantage 62

When reasonable adjustments should be made 64

Planning reasonable adjustments 71

A continuing anticipatory responsibility 73

Exceptions to the reasonable adjustment duties 75

Physical barriers 75

Auxiliary aids and services 76

Reasonableness 77

Who decides what is reasonable 77

When it is reasonable to take a particular step 77

Justifying a failure to make reasonable 79adjustments

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7 VICTIMISATION 83Definition of victimisation 83

False allegations of disability discrimination 84

8 LACK OF KNOWLEDGE DEFENCE 87A defence against a claim of disability discrimination 87

When lack of knowledge is not a defence against 88a claim of disability discrimination

9 CONFIDENTIALITY 93Definition of confidentiality 93

Who can request confidentiality 94

What a responsible body should do 94

The impact of a request for confidentiality 95

10 PRACTICAL GUIDANCE FOR INCLUSIVEEDUCATION 99Introduction 99

Other conventions relating to the rights of children 100and young people

The diverse nature of disability 102

Practical steps 102

Avoid making assumptions 102

Talk to disabled pupils and their parents 103

Seek expert advice 104

Raise pupils’ awareness of disability 106

Develop links 106

Monitor the number of disabled pupils and 109prospective disabled pupils

Plan ahead 109

Implement inclusion policies, procedures 110& practices

Review anti-bullying policy & procedures 111

Implement a confidentiality policy 111

Consult on policies 112

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Communicate policies 113

Deal effectively with complaints 114

Provide training and guidance 115

11 ACCESSIBILITY STRATEGIES &ACCESSIBILITY PLANS 117Accessibility strategies 117

Accessibility plans 119

12 RESOLVING DISABILITY DISCRIMINATIONDISPUTES 123Routes to challenge disability discrimination 123

Internal complaints procedures of the 123responsible body

Independent conciliation 124

Legal Action 125

Time limits for lodging a complaint of 125disability discrimination with SENDIST

How to contact SENDIST 126

SENDIST remedies 126

Expulsion Appeals Tribunal 128

Time limits for lodging an expulsion appeal 128

Further information and advice 128

13 OTHER DUTIES ON EDUCATION ANDLIBRARY BOARDS 131General education functions 131

14 USEFUL CONTACTS 135

INDEX OF EXAMPLES 145

1

1This Chapter provides a brief outline of:

• the purpose of the Special Educational Needs andDisability (Northern Ireland) Order 2005; and

• the purpose of this Code of Practice.

General comments

1.1 The concept of disability discrimination in this Code ofPractice (Code) reflects the Social Model principle that itis often environmental factors (such as the structure of abuilding), attitudes, communication or an educationprovider’s practices, rather than limitations arising froma person’s disability, which unnecessarily restrict adisabled pupil’s ability to participate fully in educationallife.

This principle underpins the duty to make reasonableadjustments described in Chapter 6 of this Code.Understanding this principle will assist schools andEducation and Library Boards to build upon alreadyexisting inclusive practices.

It is as important to consider which aspects ofeducational life create difficulties for a disabled pupil asit is to understand the particular nature of an individual'sdisability.

1.2 Reference is made throughout this Code to ‘disabledpupils’ or ‘disabled people’. The Equality Commission(the Commission) appreciates the sensitivity of languageand similar to the Disability Rights Commission haschosen to adopt the term ‘disabled person’. This term,meaning a person who is disabled by environmentalfactors, social attitudes and/or communicationinadequacies, is used in our publications as opposed to‘a person with a disability’.

Introduction1

2

SENDOPart III

Chapter IVArticle 41

1The Commission acknowledges that some people mayprefer to use the alternative terminology ‘people withdisabilities’.

1.3 Many of the terms used in this Code are drawn fromlegislation and have a particular meaning. Only theSpecial Educational Needs and Disability Tribunal candecide how these terms are interpreted and in whichcircumstances they apply.

Background to the Special Educational Needsand Disability (Northern Ireland) Order 2005

1.4 From 1st September 2005, the Special EducationalNeeds and Disability (Northern Ireland) Order 2005(SENDO) applies to providers of education in NorthernIreland. Although SENDO only applies in NorthernIreland, similar laws already exist in England, Wales, andScotland.

1.5 The Equality Commission for Northern Ireland hasissued this Code of Practice for Schools under Section54A of the Disability Discrimination Act 1995 (asamended) and at the request of the Minister forEducation. To understand SENDO fully readers areadvised to consult the Department of Education’s Codeof Practice on the Identification and Assessment ofSpecial Educational Needs and the supplement to it, aswell as the accessibility planning guidance materials ofthe Department of Education, Education and LibraryBoards and schools respectively.

1.6 The Commission has issued a separate Code ofPractice covering Disability Discrimination in Further andHigher Education. Further guidance relating to theduties on General Qualifications Bodies also will beavailable from the Commission.

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1The purpose of SENDO

1.7 SENDO strengthens the right of pupils with specialeducational needs to be educated in mainstreamschools.

1.8 It makes it unlawful for schools to treat disabled pupilsand prospective disabled pupils less favourably thanother pupils in all aspects of school life.

1.9 It places a duty on schools to make improvements inaccessibility to help enable disabled pupils have thesame access to education as pupils who do not have adisability.

1.10 It places a duty on schools to work towards makingschool life more accessible to disabled pupils. Forexample in terms of premises, the curriculum andwritten information.

1.11 It makes it unlawful for general qualifications bodies todiscriminate against disabled pupils in relation to theaward of prescribed qualifications such as GCSE, GCE,AVCE, GNVQ and AEA to Entry Level, Basic and Key aswell as vocational and vocationally-related qualifications.

1.12 Prior to 1st September 2005 there was no duty onschools in relation to disability discrimination againstdisabled pupils.

The purpose of the Code

1.13 The Code is intended to show that all pupils have a rightto the same opportunities in the whole of educationallife.

4

11.14 The Code strives to explain what SENDO requires from

education providers in respect of education andassociated services and shows how they might meetthese requirements.

1.15 The Code can help disabled children, young people andtheir parents to understand the law. It may assisteducation providers to avoid complaints and litigationby adopting good practice.

1.16 In addition, the Code is intended to give practicalguidance on how to strengthen inclusive practices.

Status of the Code

1.17 The Code does not impose legal obligations nor is it anauthoritative statement of the law – that is a matter forthe Special Educational Needs and Disability Tribunal forNorthern Ireland (the Tribunal). However, the Code canbe used in evidence in legal proceedings under SENDO.The Tribunal, in dealing with disability discriminationcases, must take into account any part of the Code thatappears to be relevant to any question arising in thoseproceedings.

1.18 Throughout the Code, references are made to‘responsible bodies’. These are the bodies responsiblefor providing education or other related provision, andwhich are legally responsible under SENDO.

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1Who the Code is for

1.19 This Code will be of use to:

• all Northern Ireland schools (as defined in Article2(2) of the Education and Libraries (NorthernIreland) Order 1986) whether mainstream or special,grant-aided or independent;

• Education and Library Boards;

• school Boards of Governors;

• Trustees

• proprietors of independent schools; and

• all pupils and prospective pupils who are disabled,including pupils over 16 who are still at school;

• parents of all pupils and prospective pupils who aredisabled, including pupils over 16 who are still atschool.

1.20 Separate guidance covering further and highereducation and general qualifications bodies (thosewhich cover the range of qualifications listed at Para1.11) is available free of charge from the Commission.Guidance relating to Special Educational Needs andAccessibility Planning is available from the Departmentof Education. See Chapter 14 for contact details.

1.21 There are many private, voluntary and statutoryproviders of services for children under compulsoryschool age that are not constituted as schools. Theyare not covered by SENDO. These services are coveredby the provisions set out in Part 3 of the DisabilityDiscrimination Act 1995 (DDA). The DDA Part 3 duties

(Access to goods, facilities and services) are explainedin a separate Code of Practice on Rights of Access toGoods, Facilities, Services and Premises published bythe Commission. Further information or guidance isavailable free of charge from the Commission.

1.22 All early years providers have a duty under Part 3 of theDDA not to discriminate against disabled children, in theeducation and day-care provided or in other servicesthey provide. The table below sets out the maindisability discrimination legislation that applies to eachtype of education provider.

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1

DDAPart 3 (Access togoods, facilitiesand services)

Day-carenurseries, familycentres etc.

Private orvoluntary after /out of school clubs

Private andvoluntaryplaygroups andpre-schools

Registeredchildminders

Non-educationservices providedby schools

SENDOPart 3 Chapter 1Schools’ duties

All grant-aided andindependentschools inNorthern Ireland(including nurseryschools)

After / out ofschool clubsprovided by school

Pupils registeredwith a school buteducatedotherwise than atschool

After school clubsand activitiesprovided byschools to theirown pupils

SENDOPart 3Chapter 1Education andLibrary Boards’residual duty

Pupils notregistered with aschool buteducatedotherwise than atschool

Children understatutory schoolage but in receiptof services otherthan at school

Other duties onEducation andLibrary Boardscited in Chapter 13of this Code ofPractice

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1How to use the Code

1.23 Each chapter of the Code is part of an overallexplanation of SENDO and the duties it places oneducation providers. In order to understand the lawproperly it is necessary to read the Code as a whole. Itshould not be read too narrowly or literally. It isintended to illustrate how the law might operate incertain situations and to provide general guidance onthe new law.

1.24 There are some questions which the Code cannotresolve and which must await the authoritativeinterpretation of the Tribunal. The Code is not intendedto be a substitute for taking appropriate legal adviceabout particular situations.

1.25 The Code contains quotations taken directly fromSENDO. Although SENDO uses language specific tothe male gender, the legal convention under theInterpretation Act (NI) 1954 is that both males andfemales are included. Thus where direct quotationsfrom SENDO appear in the Code, for example:

“a responsible body discriminates against adisabled person if - for a reason which relates to hisdisability, it treats him less favourably than it treatsor would treat others to whom that reason does notor would not apply”

Both male and female are covered by the words ‘him’and ‘his’.

1.26 Examples based on everyday situations are given inboxes. They are intended to illustrate the principles andconcepts used in the legislation and assistunderstanding of the law. They are often examples ofcommon or best practice in schools in Northern Irelandand examples of how obligations under the new lawmay or may not be met in different situations. Theyshould not be treated as complete or authoritativestatements of the law.

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1

SENDOPart III

Chapter IVArticle 46

1.27 The examples cover different situations in school life,different types of school and pupils with differentdisabilities. Although they are examples of particularsituations, they can often be used to show how the lawmight work in similar situations.

Keeping up-to-date with the Law

1.28 This Code refers to Parts III to IV of SENDO that coverdisability discrimination in schools. Over time, theremay be changes to SENDO or to other legislation, forexample, to the range of people who are considered tohave a disability under the law. These changes mayhave an effect on the duties explained in this Code.Everyone who has responsibilities under SENDO willneed to keep up-to-date with any changes that mayaffect what the law requires them to do.

Statutory authority and national security

1.29 SENDO does not make unlawful any act done inpursuance of legal obligations under any otherlegislation or enactment of a Minister of the Crown orNorthern Ireland department. SENDO does not makeunlawful any act done for the purpose of safeguardingnational security.

Further informationCopies of SENDO and Regulations made under it canbe obtained from:

The Stationery Office (TSO)16 Arthur StreetBelfast BT1 4GDTelephone: 028 9023 8451Fax: 028 9023 5401E-mail: [email protected]: www.tso.co.uk

Office of Public Sector Information (OPSI)Website and e-mail: www.opsi.gov.uk

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2

This Chapter provides a brief outline of:

• the definition of disability; and

• who is protected by the Special Educational Needsand Disability (Northern Ireland) Order 2005.

2.1 Part III of SENDO protects disabled pupils fromdisability discrimination in education. It defines adisabled pupil as “a pupil who is a disabled person”.

2.2 This means that a pupil who is, by the definition given inthe DDA a ‘disabled person’, is protected fromdiscrimination on grounds of their disability by SENDO.

Definition of ‘disabled person’

2.3 The DDA defines a disabled person as someone whohas a physical or mental impairment which has asubstantial and long term adverse effect on his or herability to carry out normal day-to-day activities. TheDDA states that the definition does not include anyimpairment resulting from or consisting of a mentalillness, unless that illness is a clinically well-recognisedillness. A clinically well-recognised illness is one that isrecognised by a respected body of medical opinion.This aspect of the definition along with other areas maybe reviewed and amended. The reader is advised tokeep up-to-date on the definition of disability. To dothis, contact the Commission.

Definition of a disabledperson – Who has rightsunder SENDO

2

DDAPart I

10

2

This definition raises a number of concepts that need tobe explored in order to help us understand who meetsthe definition of a disabled person.

Physical or mental impairment

2.4 The term ‘physical impairment’ may include for examplecerebral palsy, muscular dystrophy, spina bifida,arthritis, hearing or sight impairment, diabetes, asthma,epilepsy, chronic fatigue syndrome (ME), HIV, cancer,multiple sclerosis as well as facial disfigurement.

The term ‘mental impairment’ may include depression,post traumatic stress disorder, and schizophrenia. Itmay also include what are often known as learningdifficulties. For example, emotional behaviouraldisorder, ADHD, ADD, emotional and behaviouraldifficulties, autistic spectrum disorders, anddevelopmental disorders such as dyspraxia.

Substantial adverse effect

2.5 This is an effect that is more than minor or trivial - alimitation that is more than the normal differences inability that might exist among people. It makes it moredifficult and time consuming for the person to carry outan activity compared to someone without theimpairment.

Long-term effect

2.6 A long-term effect of impairment is one which:

• has lasted at least 12 months; or

• is likely to last at least 12 months; or

• is likely to last for the rest of the person’s life.

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2

2.7 Effects such as the loss of mobility due to a broken limbor the effects of temporary infections are not consideredto be long-term because a person would be likely torecover from these within 12 months.

Effects that change over time

2.8 If an effect is likely to come and go over a period of time(i.e. it is likely to recur) it is considered to be long-term.

Example 1 – A long-term effect

A pupil with arthritis has a period of remission, but it isexpected that there will be a recurrence 12 months ormore after the initial occurrence. This amounts to along-term effect.

Past disabilities

2.9 Pupils who have had a disability in the past, within thedefinition, are protected from disability discrimination (inrelation to that disability) even if they are no longerdisabled. This may include pupils who have previouslyhad mental health problems.

Normal day-to-day activities

2.10 These are activities that are carried out by most peopleon a fairly regular and frequent basis. For example:

• mobility;

• manual dexterity;

• physical co-ordination;

• continence;

• ability to lift, carry or move everyday objects;

DDASchedule 2

12

2

• speech, hearing or eyesight;

• memory or ability to concentrate, learn orunderstand; or

• perception of the risk of physical danger.

Effects of treatment

2.11 A pupil with an impairment may be receiving medical orother treatment which alleviates or removes the effectsalthough not the impairment. In such cases, theimpairment is regarded as having the effect it wouldhave had if the person did not have the treatment. Forexample a hearing aid may remove the effect of thedisability for a person who is hard of hearing but it doesnot remove the disability. The hearing loss is regardedas having the effect it would have had if the pupil didnot use the hearing aid.

This does not apply if substantial adverse effects are notlikely to recur even if the treatment stops, because theindividual no longer has a disability.

Pupils who wear spectacles

2.12 Wearing spectacles is the only exception to the ruleabout ignoring the effects of treatment. Usually a pupilwho wears spectacles would not be considereddisabled. However, a pupil who is visually impaired andwears spectacles would be considered disabled.

Pupils who have severe disfigurements

2.13 Pupils with severe disfigurements are protected bySENDO. There is no need to demonstrate the effect thata pupil’s severe disfigurement has on their ability tocarry out normal day-to-day activities.

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2

2.14 However, disfigurements which consist of a tattoo(which has not been removed), non-medical bodypiercing, or something attached through such piercing,are not protected by SENDO.

Progressive conditions

2.15 Conditions that are likely to change and develop overtime are known as progressive conditions. Examples arecancer, multiple sclerosis, muscular dystrophy and HIVinfection. Pupils with progressive conditions areprotected from the time of diagnosis.

Genetic conditions

2.16 If a genetic medical condition has no effect on ability tocarry out normal day-to-day activities, the person is notprotected. Diagnosis does not in itself bring someonewithin the definition. If the medical condition isprogressive, then the rule about progressive conditionsapplies.

Excluded conditions

2.17 The DDA sets out a list of excluded conditions. Formore information contact the Equality Commission.

Pupils with a Statement of specialeducational needs

2.18 Some children with or without a Statement may bereceiving special educational provision at school butmay not be a disabled person. The fact that a pupil hasspecial educational provision made for him or her doesnot automatically mean that he or she is disabled inaccordance with the definition in the DDA. A pupil mayhave a Statement, but unless there is an underlyingphysical or mental impairment affecting the pupil’sability to carry out normal daily activities, the pupilwould not be considered a disabled person according tothe DDA definition.

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2

2.19 Those who have a Statement of special educationalneeds but are not considered a disabled person underthe DDA definition are not protected by the disabilitydiscrimination duties in Part III of SENDO (see Chapters4 – 12 of the Code).

2.20 However, there are many children who will requirespecial educational provision to access education andwill also satisfy the definition of disability under theDDA. These children should not be discriminatedagainst on the grounds of their disability, and shouldalways benefit from the same educational opportunitiesas children without a disability.

Further information on disability discrimination

2.21 The definition of a disabled person used by the DDAcan be periodically reviewed. To ensure that thedefinition cited within this Code of Practice is up-to-dateat time of reading please contact the EqualityCommission for further information. See Chapter 14 forthe Commission’s contact details.

2.25 A publication, available from The Stationery Office,entitled ‘Guidance on matters to be taken into accountin determining questions relating to the definition ofdisability’, provides additional help in understanding theconcept of disability and in identifying disabled persons.See Chapter 14 for The Stationery Office contactdetails.

2.26 Additional Sources of information are given in Chapter14 of the Code.

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3Guidance on the Special Educational Needs (SEN)aspects of SENDO is the responsibility of theDepartment of Education. The Department of Educationhas a Code of Practice on the Identification andAssessment of Special Educational Needs and aSupplement (2005) to it.

Schools, Boards and others exercising relevant statutoryfunctions (including the tribunal), need to be able todemonstrate in their arrangements for children withSEN, that they are fulfilling their statutory duty to haveregard to the Code of Practice on the Identification andAssessment of Special Educational Needs and itsSupplement. Issues relating to the application of theprocedures of SEN should be addressed to theDepartment of Education or Education and LibraryBoards. The Commission cannot advise on mattersrelating to policy and procedures of the SEN framework.

This Chapter provides a brief outline of:

• what the law says about educating pupils withspecial educational needs;

• the changes to the law on SEN as a result ofSENDO;

• where to go for more information; and

• the relationship between SEN and disability.

Special educational needs3

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3

The law on special educational needsprior to SENDO

3.1 Current education law says that:

“a child has “special educational needs” if he has alearning difficulty which calls for special educationalprovision to be made for him”.

It says that:

“a child has a "learning difficulty" if –

(a) he has a significantly greater difficulty inlearning than the majority of children of his age;

(b) he has a disability which either prevents orhinders him from making use of educationalfacilities of a kind generally provided forchildren of his age in ordinary schools; or

(c) he has not attained the lower limit ofcompulsory school age and is, or would be ifspecial educational provision were not madefor him, likely to fall within sub-paragraph (a) or(b) when he is of compulsory school age.”

3.2 Most pupil’s needs can be met by a mainstream schoolbut in some circumstances educational provision isprovided within a non-mainstream setting known as a‘special’ school.

3.3 The Code of Practice on the Identification andAssessment of Special Educational Needs sets out a 5stage approach to identification and assessment ofchildren or young people with special educationalneeds. The first 3 stages are school based, calling onexternal specialists at stage 3 as necessary. At stages 4and 5 the Education and Library Boards shareresponsibility with schools.

The Education(Northern

Ireland)Order 1996

Part IIArticle

3(1) & (2)

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3

The 5 stages are as follows:

Stage 1: teachers identify and register a pupil’s specialeducational needs and, consulting the school’sspecial educational needs co-ordinator(SENCO) take initial action;

Stage 2: the SENCO takes lead responsibility forcollecting and recording information and forco-ordinating the pupil’s special educationalprovision, working with the pupil’s teacher;

Stage 3: teachers and the SENCO are supported byspecialists from outside the school;

Stage 4: the Education and Library Board considers theneed for a statutory assessment and, ifappropriate, makes a multi-disciplinaryassessment;

Stage 5: the Education and Library Board considers theneed for a Statement of special educationalneeds. If appropriate, it makes a Statementand arranges, monitors and reviews the specialeducational provision.

3.4 The procedures associated with the statutoryassessment and Statementing process, and the rights ofpupils with special educational needs come from theEducation (Northern Ireland) Order 1996, as amendedby SENDO. The Code of Practice on the Identificationand Assessment of Special Educational Needs and theSupplement to that Code, operative from 1 September2005 provides further detail and can be obtained from:

Special Education BranchDepartment of EducationRathgael House43 Balloo RoadBangor BT19 7PR Telephone: 028 9127 9279 Fax: 028 9127 9100 Website: www.deni.gov.uk

A list of useful contacts is given in Chapter 14 of thisdocument.

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Aspects of the SEN not affected by SENDO

3.6 Special educational provision may be provided by:

• schools;

• schools in partnership with other external agencies;or

• by schools and Education and Library Boards andHealth and Social Services Trusts (if statutoryassessment results in a Statement of specialeducational needs by schools).

Further information about this is available from theDepartment of Education.

3.7 SENDO does not affect:

• the way that an assessment of a pupil’s specialeducational needs is carried out; or

• how a Statement of special educational needs ismade, reviewed or amended.

3.8 If a parent has any concerns that their son or daughtermay have special educational needs, they should sharethese concerns with his or her teacher who may be ableto offer further advice.

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Changes in relation to specialeducational needs

3.9 In relation to special educational needs SENDO makeschanges in 5 key areas:

• increased rights for pupils with special educationalneeds to attend mainstream schools;

• new Education and Library Boards advice andinformation service;

• new Education and Library Boards DisputeAvoidance and Resolution Service (DARS);

• a requirement to inform parents that specialeducational provision is being made; and

• request for a statutory assessment of specialeducational needs from a responsible body.

Each of these will now be explored in more detail.

Education in mainstream schools for pupils withspecial educational needs

3.10 SENDO gives a right to pupils who have a Statement ofspecial educational needs to be educated in amainstream school unless:

“that is incompatible with:-

(a) the wishes of his parent; or

(b) the provision of efficient education for otherchildren”.

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Where a parent expresses a preference for a grant-aided school the Education and Library Board willspecify the name of that school in the Statement unless:

“(a) the school is unsuitable to the child’s age,ability or aptitude or to his special educationalneeds; or

(b) the attendance of the child at the school wouldbe incompatible with the provision of efficienteducation for the children with whom he wouldbe educated or the efficient use of resources”.

3.11 SENDO states that further guidance may be issued toEducation and Library Boards and Boards of Governorsby the Department of Education, particularly on theissue of what reasonable steps might be taken toensure compatibility. This guidance is included in the‘Supplement to the Code of Practice on Identificationand Assessment of Special Educational Needs (2005).

3.12 A child or young person without a Statement may beadmitted to a special school for the purposes of astatutory assessment of his or her special educationalneeds. In some cases, a child or young person withouta Statement of special educational needs may also beadmitted to a special school due to a change in his orher circumstances.

Education and Library Board Advice andInformation Service

3.13 As of 1st September 2005, Education and LibraryBoards must provide a special educational needs adviceand information service not only in respect of individualpupils but also in general terms. Additionally, in relationto Stages 4 and 5 of the SEN process outlined atparagraph 3.3, a named officer of the Education andLibrary Board will provide information, advice andsupport to parents and schools.

SENDOPart II

Article 4

SENDOSchedule 1Article 5(3)

SENDOPart II

Article 3

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The SEN Dispute Avoidance and Resolution Service(DARS)

3.14 As of 1st September 2005, Education and LibraryBoards must also have an independent service in placefor avoiding and resolving disputes relating to SENissues between parents and schools, and parents andthe Education and Library Board/s.

3.15 This service is known as the Dispute Avoidance andResolution Service (DARS) and is separate from theConciliation service provided by the Commission whichonly deals with disability discrimination (see Chapter 12).

3.16 The DARS provides an informal forum for exploringdifferences, identifying points of agreement anddisagreement and finding a way forward that all partiesaccept. It is independent of the Education and LibraryBoards’ SEN branches and the SEN decision-makingareas.

3.17 Neither the DARS nor the Commission’s ConciliationService affect a parent’s right of appeal to the Tribunal.

Informing parents that special educational provisionis being made

3.18 The law calls for schools to inform parents when theyconsider that their child may have special educationalneeds and that special educational needs provision isbeing made.

Assessment of special educational needs

3.19 Parents have a right to request an assessment or reviewof their son or daughter’s special educational needs.SENDO now allows responsible bodies to request anassessment or review (Chapter 4 discusses who is aresponsible body).

SENDOPart IIArticle 5


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3.20 Before deciding if an assessment or review will becarried out, the Education and Library Board in whichthe pupil lives, must inform his or her parents:

• that it is considering whether or not to assess theirson or daughter’s special educational needs;

• how the assessment will be carried out;

• of the name of a person in the Education andLibrary Board who can give further informationabout this; and

• of their right to be consulted and to make theirviews known.

3.21 The Education and Library Board must inform theparents that it has decided to:

• carry out a statutory assessment of a pupil’s specialeducational needs;

• carry out a review of an existing Statement ofspecial educational needs;

• seek updated advice from professional advice-givers; or

• undertake a reassessment of the pupil’s specialeducational needs.

3.22 If the Education and Library Board decide not to makean assessment it must inform the parents about theirright to appeal against this decision and of the parents’right to access the DARS service.

SENDOPart II

Article 10

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3.23 Education and Library Boards must give parents a copyof their child’s Statement of special educational needs,any amended Statement or additional report appendedto the Statement. They must inform parents about howthey can appeal against their decisions. Under Article12 of the United Nations Convention on the Rights ofthe Child children may have a right to be involved in anyappeal process concerning their education.

3.24 The Department of Education has issued a ‘Supplementto the Code of Practice on the Identification andAssessment of Special Educational Needs’ in order toprovide a clear understanding and consistency ofapproach with schools, Education and Library Boardsand others on the steps to be taken in carrying outstatutory functions as they relate to special educationalneeds aspects of SENDO.

Copies of the ‘Supplement to the Code of Practice onthe Identification and Assessment of SpecialEducational Needs’ can be obtained from:

Special Education BranchDepartment of EducationRathgael House43 Balloo RoadBangor BT19 7PR Telephone: 028 9127 9279

Parents right of appeal to the Tribunal

3.25 Parents’ rights of making a SEN appeal to the Tribunalare unchanged by SENDO. The Tribunal will continue toconsider SEN appeals but SENDO extends the powersof the Tribunal. As of 1st September 2005, the Tribunalwill be known as the Special Educational Needs andDisability Tribunal (SENDIST) and will also considerclaims of disability discrimination under SENDO (seeChapter 12).


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3.26 A parent can appeal against the content of a Statementof special educational needs about:

• the description of the pupil’s special educationalneeds (Part 2 of the Statement) ;

• the special educational provision specified (Parts 3and 4 of the Statement) (including the name of anyschool specified); or

• the fact that no school is specified (Part 4 of theStatement).

3.27 An appeal about the content of the Statement can bemade to the Tribunal:

• when the Statement is made;

• the Statement is amended; or

• if following an assessment, the Education andLibrary Board decides not to amend the Statement.

3.28 The time limit for making an application to the Tribunalin relation to unresolved disputes is two months.

3.29 In certain circumstances, children and young peoplehave the right to participate in appeal proceedings. Thisis in accordance with Article 12 of the United NationsConvention on the Rights of the Child.

3.30 Education and Library Boards must comply with thedecisions of the Tribunal within set times. If anEducation and Library Board does not comply with anorder of the Tribunal, a parent has the right to ask theDepartment of Education to enforce the Tribunaldecision by making a direction for compliance to theBoard.

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The relationship between special educational needsand disability

3.31 Not all pupils who are disabled will have a SEN. Forexample, a pupil who has severe asthma that affectshis/her ability to carry out normal daily activities may bea disabled person according to the DDA definition (seeChapter 2 for definition of disability), but he or she maynot have a Statement of special educational needs.However, many pupils who are disabled will have aStatement as a result of their disability, for example, ablind pupil who is disabled according to the DDAdefinition and who has a Statement because he or sherequires special educational provision.

3.32 A disabled pupil has special educational needs only ifhe needs special educational provision to enable him toaccess education. A disabled pupil who needs specialeducational provision in order to access education, hasthat provision made through the special educationalneeds framework. SENDO does not change this anddoes not provide a new or alternative route to accesssuch aids and services.

3.33 The purpose of the special educational needsframework is to identify and meet any specialeducational needs which the learning difficulty calls for.The disability discrimination duties in SENDO are thereto ensure that disabled pupils are not discriminatedagainst and to promote equality of opportunity betweendisabled pupils and other pupils who do not have adisability.

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3.34 The special educational needs duties, the disabilitydiscrimination duties and the strategic planning duties(see Chapter 11 Accessibility Strategies andAccessibility Plans) in SENDO fit together like the piecesof a jigsaw, so that the whole education experience will,as far as possible, be the same for disabled pupils as itis for other pupils.

3.35 Together these duties will provide a stronger legalframework to underpin the inclusive practice thatschools are already working towards.

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4This Chapter provides a brief outline of:

• what disability discrimination is;

• what activities are covered by SENDO; and

• who has responsibilities

Disability discrimination outlined

4.1 The following three terms are used to describe unlawfuldisability discrimination:

• less favourable treatment;

• failure to make reasonable adjustments; and

• victimisation

A brief outline of each of these follows. More detailedconsideration is given to each in Chapters 5 – 7.

Those responsible for ensuring that disabled pupils donot experience disability discrimination are discussed insections 4.26 – 4.29 of this chapter.

Overview of Duties andResponsibilities underSENDO

4

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Less favourable treatment

4.2 SENDO describes this type of disability discrimination inthe following way:

“a responsible body discriminates against adisabled person if –

(a) for a reason which relates to his disability, ittreats him less favourably than it treats orwould treat others to whom that reason doesnot or would not apply; and

(b) it cannot show that the treatment in question isjustified”.

This means that education providers have a duty not totreat disabled pupils less favourably than other pupilsfor a reason relating to their disability, when it cannot bejustified. This form of disability discrimination isexplained in more detail in Chapter 5.

Failure to make reasonable adjustments

4.3 SENDO says that a responsible body also discriminatesagainst a disabled pupil if it fails to:

“take such steps as it is reasonable for it to have totake to ensure that:

(a) in relation to the arrangements it makes fordetermining the admission of pupils to theschool, disabled persons are not placed at asubstantial disadvantage in comparison withpersons who are not disabled; and

(b) in relation to education and associated servicesprovided for, or offered to, pupils at the schoolby it, disabled pupils are not placed at asubstantial disadvantage in comparison withpupils who are not disabled”.

SENDOPart III

Chapter IArticle 15

SENDOPart III

Chapter IArticle 16(1)

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This means that unless they have a justification for notdoing so, education providers have a duty to makereasonable adjustments so that disabled pupils are notat a substantial disadvantage compared to other non-disabled pupils. This anticipatory duty under SENDOplaces the onus on schools to anticipate the needs ofpupils and to create an environment where pupils feelsecure in disclosing any disability that they may have.Paragraph 4.20 gives examples of the range of activitiesthat may be covered by the term ‘associated services’.Disability discrimination by way of failing to makereasonable adjustments is explained in more detail inChapter 6.

Limits to the duty to make reasonable adjustments

Auxiliary aids and services

4.4 Although SENDO says that schools must takereasonable steps to avoid putting disabled pupils at asubstantial disadvantage, this does not includeproviding “auxiliary aids or services”. These may beprovided through the SEN process which determinesthe individual needs of a pupil with SEN.

Physical features of buildings

4.5 SENDO states that a responsible body is notimmediately required to:

“remove or alter a physical feature (for example,one arising from the design or construction of theschool premises or the location of resources)”.

However, SENDO places a duty to plan for accessibilitywhich means that the responsible body must beproactive in making improvements through plannedchanges over time. However, schools can to go beyondwhat SENDO requires if they are able to. Theaccessibility duties placed on schools are discussed inChapter 11.

SENDOPart IIIChapter IArticle 16(2)(b)

SENDOPart IIIChapter IArticle 16(2)(a)

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Triggers to making reasonable adjustments

4.6 SENDO makes it clear that in failing to take a particularstep a responsible body does not discriminate against adisabled pupil if it shows that:

(a) “at the time in question, it did not know and couldnot reasonably have been expected to know, thathe was disabled; and

(b) that its failure to take the step was attributable tothat lack of knowledge”.

This means that if a responsible body did not know, andcould not reasonably be expected to know, that a pupilwas disabled, it cannot be considered responsible for afailure to make a reasonable adjustment. However, ifthe school can reasonably be expected to have knownof the disability, it is under a duty to provide reasonableadjustments, even where the disability has not beenformally disclosed. Many changes need to be maderegardless of knowing about an individual pupil. Theresponsible body must have taken reasonable steps tohave found out about a disability. This is explained inmore detail in Chapter 8.

4.7 The anticipatory nature of the duty to make reasonableadjustments means that even if there are no disabledpupils in a school at present, in the expectation thatthere will be disabled pupils in their school, theresponsible body needs to consider what changes maybe needed, develop or amend their policies accordinglyand produce plans of action. In taking such action, aresponsible body will be more prepared when a newpupil with a disability is admitted to the school.

4.8 Schools need to know that a pupil is disabled and theyneed to have some knowledge of the nature of a pupil'sdisability, if they are to ensure that they do not treat thepupil less favourably. The same applies if the school isto make reasonable adjustments for the disabled pupil.Despite the fact that the reasonable adjustments duty

SENDOPart III


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relates to disabled pupils in general, the school will needto know when and how to apply any specific individualarrangements. It is important therefore that disabledpupils or their parents provide schools in advance withas much information as possible. Examples of howfailing to provide information may affect a school’sability to meet a pupil’s individual needs are given inChapter 8 (Examples 42 and 43).

4.9 Parents and pupils have a right under SENDO to make arequest for confidentiality in relation to any disabilitydisclosed (Chapter 9). Parents and pupils need to beaware that a request for confidentiality may limit what aresponsible body may be able to do for the pupil by wayof making reasonable adjustments (see paragraph 9.9).For further information about other conventions relatingto the rights of children and young people see Chapter10 paragraphs 10.5 – 10.8.

4.10 There are some circumstances where a pupil and/orparents are not aware of the disability; have not receiveda clear diagnosis; do not accept the disability; or thechild may not require special educational provision orreasonable adjustments but is afforded protection fromdisability discrimination. Although a lack of knowledgeof a disability may be a defence to an allegation ofhaving failed to make reasonable adjustments, aresponsible body cannot rely on this if it could havebeen reasonably expected to know that the pupil had adisability. The lack of knowledge defence is discussedfurther in Chapter 8.

Victimisation

4.11 Victimisation is a special form of disability discriminationcovered by SENDO. It is explained in more detail inChapter 7. It applies whether or not the person is adisabled person.

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4.12 SENDO states that a person discriminates againstanother person (who may or may not be disabled) if theytreat him or her less favourably than they treat (or wouldtreat) other people in the same circumstances becausehe has:

• brought proceedings under the disabilitydiscrimination provisions of SENDO or the DDA(whether or not they are later withdrawn);

• given evidence or information in connection withsuch proceedings;

• done anything else under the disabilitydiscrimination provisions of SENDO or the DDA; or

• alleged that someone has contravened the disabilitydiscrimination provisions of SENDO or the DDA.

4.13 A person also discriminates against another person ifthey treat him or her less favourably than they treat (orwould treat) other people in the same circumstancesbecause they believe or suspect that they had done orintends to do any of the above things.

4.14 However, it is not victimisation to treat a person lessfavourably because that person has made an allegationwhich was false and not made in good faith.

Aspects of education covered by SENDO

4.15 Every aspect of school life is covered. This includes:

• admissions;

• education and associated services; and

• suspensions and expulsions.

SENDOPart III

Chapter IVArticle 43(2)(b)

SENDOPart III

Chapter IVArticle 43(5)

SENDOPart III

Chapter IVArticle 43(2)(a)

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Admissions

4.16 SENDO States:

“It is unlawful for the body responsible for a schoolto discriminate against a disabled person:-

(a) in the arrangements it makes for determiningadmission to the school as a pupil;

(b) in the terms on which it offers to admit him tothe school as a pupil; or

(c) by refusing or deliberately omitting to acceptan application for his admission to the schoolas a pupil.

This means:

4.17 Education providers must not discriminate againstdisabled pupils or prospective disabled pupils:

• in the decisions they make about who will beadmitted to a school;

• in the terms that they offer pupils admission to theschool; or

• by refusing or deliberately not accepting anapplication for admission to the school fromsomeone who is disabled.

4.18 Sometimes a school is allowed to refuse a disabledpupil admission. This is discussed in Chapter 5.

Education and associated services

4.19 SENDO says:

“It is unlawful for the body responsible for a schoolto discriminate against a disabled pupil in theeducation or associated services provided for, oroffered to, pupils at the school by that body”.

SENDOPart IIIChapter IArticle 14(1)


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4.20 ‘Education and associated services' is a broad term thatcovers all aspects of school life for pupils and potentialpupils. The following lists examples of the range ofactivities that may be covered by this term:

• preparation for entry to the school;

• admission criteria;

• the curriculum;

• teaching and learning;

• classroom organisation;

• timetabling;

• grouping of pupils;

• homework;

• activities that supplement the curriculum;

• after school clubs and activities provided byschools to their own pupils;

• school sports;

• school policies;

• breaks and lunchtimes;

• the serving of school meals;

• interaction with peers;

• assessment and exam arrangements;

• school discipline and sanctions;

• suspension / expulsion procedures;

• school clubs and activities;

• school trips;

• work experience;

• counselling services;

• medical support;

• preparation for the next phase of education; and

• preparation for the Transfer Test.

This is not an exhaustive or all inclusive list and it is notintended to be.

4.21 Other services that are provided to the public are notincluded. For example, if the governing body holds aparents meeting this activity is covered by Part 3 of theDDA. A Code of Practice explaining the duties in Part 3of the Act: Rights of Access to Goods, Facilities,Services and Premises is available from theCommission.

4.22 In some areas of school life there may be an overlap ofresponsibility with other bodies that have duties underPart 3 of the DDA, (for example, providers of healthservices). Education providers must make sure thatthey fulfil their responsibilities, regardless of duties onother bodies.

Suspending or expelling a disabled pupil

4.23 SENDO says:

“It is unlawful for the body responsible for a schoolto discriminate against a disabled pupil bysuspending or expelling him from the school”.

This means that:

4.24 It is unlawful for a responsible body to suspend or expela pupil for a reason related to his or her disability.

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Who has responsibilities under SENDO?

SENDO places responsibility for the implementation ofits duties with the “responsible body”.

Responsible bodies

4.25 SENDO says:

“the Body responsible for a school is –

(a) in the case of a grant-aided school, the boardfor the area in which the school is situated orthe Board of Governors, according to whichhas the function in question;

(b) in relation to an independent school, theproprietor”.

This means that:

the responsibility not to discriminate against disabledpupils or prospective disabled pupils varies dependingon:

• the type of school; or

• the role in question

SENDOPart III


37

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Responsible body according to type of school

Type of School Responsible Body

• Grant-aided Schools Board of Governorsof the school

Most schools in Northern Ireland are grant-aided andinclude special schools and mainstream schools in thefollowing categories:

Controlled Schools Controlled Integrated schoolsVoluntary (Maintained) Schools Voluntary Grammar Schools Grant-Maintained Integrated SchoolsIrish Medium Schools

• Independent Schools The Owner of the school

Independent schools are funded totally by fees paid byparents and sometimes charitable trust funds. There arevery few independent schools in Northern Ireland.

Responsible body according to role

4.26 The following are a few examples of the roles that thosespecified by SENDO have responsibility for. The dutiesnot to discriminate against disabled pupils placed onthese bodies are outlined in Chapters 5, 6 and 7.

School Boards of Governors

4.27 In the majority of Northern Ireland schools it is the roleof the Board of Governors to make sure that the schoolprovides a good quality education. It is the Board ofGovernors that decides the school aims and policies onsuch issues as:

• admissions to the school;

• the curriculum on offer at the school;

• discipline within the school;

• how the budget will be spent;

• providing information to parents; and

• maintenance of school buildings.

SENDO makes the Board of Governors responsible forensuring that disabled pupils or prospective disabledpupils are not discriminated against in relation to any oftheir functions.

4.28 The Board of Governors delegates responsibility for theday-to-day running of the school to the Principal andSenior Management Team. The Board of Governors islegally responsible for the actions of the Principal andmembers of the Senior Management Team (see alsopoints 4:34 – 4:41).

Education and Library Boards

4.29 The Education and Library Boards in Northern Irelandare responsible for a range of duties and servicesincluding:

• providing curriculum advisory and support services;

• special education assessment and Statements;

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• providing information and advice to schools andparents on special educational needs matters;

• SEN Dispute Avoidance and Resolution Service;

• provision of home tuition and education otherwisethan at school (EOTAS) to pupils who aretemporarily or permanently unable to access school;

• home to school transport;

• school meals; and

• providing library services.

This is not an exhaustive list nor is it intended to be.Chapter 13 of this Code outlines the residual duties thatSENDO places on Education and Library Boards. TheEducation and Library Boards are responsible forensuring that disabled pupils or prospective disabledpupils are not discriminated against in relation to any oftheir functions.

Other bodies

4.30 There are a number of other bodies and organisations inNorthern Ireland which are not specified by SENDO asresponsible bodies but which have an input into theprovision of education. It is recommended that thesebodies / organisations take cognisance of the disabilitydiscrimination duties placed on responsible bodies forschools in the roles that they perform. These bodies /organisations may include:

• the Department of Education;

• Education and Training Inspectorate;

• the Council for Catholic Maintained Schools;

• the Northern Ireland Council for IntegratedEducation;

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• Comhairle na Gaelscolaiochta;

• Governing Bodies Association;

• General Teaching Council;

• Council for Curriculum, Examinations andAssessments

• Staff Commission for Education and Library Boards;

• Trade Unions; and

• Health and Social Service Boards and Trusts.

Their support will be vital to the successfulimplementation of SENDO in Northern Ireland schools.Particularly in relation to the provision of:

• finance;

• resources;

• training;

• advice and guidance;

• medical support;

• information;

• technical services; and

• legal services

The duties imposed by SENDO are closely linked to theduties that bodies like the Department of Education andthe Health and Social Service Boards and Trusts haveunder Section 75 of, and Schedule 9 to the NorthernIreland Act 1998 to promote equality of opportunity fordisabled pupils. Further information about the Section75 duties can be obtained free of charge from theCommission.

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The education provider’s legal responsibilityfor the actions of people working in schools

4.31 SENDO says:

“(1) Anything done by a person in the course of hisemployment shall be treated for the purposes ofthis Part as also done by his employer, whether ornot it was done with the employer’s knowledge orapproval.

(2) Anything done by a person as agent for anotherperson with the authority of that other person shallbe treated for the purposes of this Part as alsodone by that other person.

(3) Paragraph (2) applies whether the authority was –

(a) express or implied; or

(b) given before or after the act in question wasdone.”

This means:

4.32 In general, people working in schools on a daily basisare not regarded as responsible bodies and a claim ofdisability discrimination cannot be made against such aperson.

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SENDOPart IIIChapter IVArticle 45

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4.33 SENDO makes responsible bodies responsible for theactions of their employees and anyone working with theauthority of the school. This is known as ‘vicariousliability’ and in the school sector includes teachers andsubstitute teachers, classroom assistants, volunteerhelpers (including parents), teachers from supportservices, those providing school meals, after-schoolclubs, or anyone with a contract to provide any otherservice that is included in the broad scope of ‘educationand associated services’. Under SENDO, theresponsibility for disabled pupils involves everyoneworking with the authority of the school takingresponsibility for the disability duties contained inSENDO.

4.34 As an employer, a responsible body cannot use thedefence that disability discrimination took place withoutits knowledge or approval if the employee was workingwith its authority and it took no steps to prevent thesituation arising.

Example 2 – A substitute teacher discriminatesagainst disabled pupils but school’s lack ofknowledge of the act is no defence

A school’s music teacher is on sickness leave so asubstitute teacher is employed to cover the musiclessons. The school has an inclusion policy coveringpupils with a disability but fails to make the substituteteacher aware of this policy. Unknown to the school,the teacher makes no effort to teach two physicallydisabled pupils because she thinks that they will neverbe able to play the recorder. It is likely that this is lessfavourable treatment and is unlawful. Although thePrincipal and Board of Governors at the school are notaware that this is happening, the school has taken nosteps to avoid potential disability discrimination andare likely to be responsible for the actions of thesubstitute teacher.

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4.35 Responsible bodies need to make sure that employeesand those working with the school's authority:

• are aware of, understand and apply the school’spolicies and practices as they relate to disability;

• can help the responsible body to meet their dutiesto disabled pupils; and

• do not act in a way that causes the responsiblebody to be legally responsible for a claim ofdisability discrimination.

4.36 A responsible body has a defence against a claim ofdisability discrimination based on the actions of anemployee if it can prove that it took such steps as werereasonably practicable to prevent such acts. These mayinclude:

• all staff were given access to training on specialeducational needs and disability awareness;

• all staff were made aware that it is unlawful todiscriminate against disabled people;

• it has clear policies in place on disability matterswhich are clearly communicated to employees andanyone working with the authority of the school;

• these policies are backed up by appropriateinformation, advice or training and are regularlymonitored and reviewed;

• disabled pupils and their parents have beenconsulted in the development and review of anysuch policies;

• appropriate procedures are in place to back upsuch policies; or

• any written policies are available in accessibleformats to pupils and parents upon request.

SENDOPart IIIChapter IVArticle 45(5)

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4.37 A school’s internal complaints procedure should be inwriting and made available in an accessible format todisabled pupils or their parents upon request. Aresponsible body may have difficulty in defending aclaim of unlawful disability discrimination by anindividual member of staff if a complaint was made tothe school but no action was taken to stop thediscrimination.

4.38 Action by the school could include fully investigating acomplaint of disability discrimination and takingappropriate remedial action to ensure that thecircumstances that gave rise to the disabilitydiscrimination end and do not recur.

Example 3 – A school likely to have a defenceagainst a claim of unlawful disability discriminationbecause it took action to stop the discrimination

A pupil with a physical disability needs access toprivate toilet facilities for personal care. The facilitiesmust have hot water and sufficient room for a powerwheelchair and the pupil’s personal assistant. Thepupils’ toilets are not accessible but the school hasidentified some funding to redesign and adapt thetoilets. In the meantime, the school agrees that thedisabled pupil can use the staff toilet which isaccessible. However, one member of staff who feelsthat the toilet should only be used by staff, regularlywalks off with the key to the staff toilet or claims shecannot find it. Her actions place the pupil at asubstantial disadvantage. When the parents of thepupil complain the Principal immediately makes thestaff toilet accessible to the pupil and institutes theschool’s formal complaints procedure ensuring that thecomplaint and actions taken are well documented.

The responsible body is likely to have a defenceagainst a claim of unlawful disability discriminationbecause action was taken to stop the discrimination.

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4.39 Schools are responsible for anything done by theiremployees or agents with their authority. That authoritymay be explicit or implied and may have been givenbefore or after the act in question.

Example 4 – A school is responsible for disabilitydiscrimination by a parent acting with its authority

A Principal has asked a parent to run a martial artsclub for pupils after school. The parent running theclub refused to admit a pupil with a visual impairment,saying that he cannot possibly do martial arts.Because the parent is running the club with theauthority of the school, the parent is the agent of theschool and the school may have difficulty in defendinga claim of unlawful disability discrimination if it hasdone nothing to stop any discrimination on the part ofthe parent.

Unlawful agreements

4.40 SENDO says:

“(1) Any term in a contract or other agreement made byor on behalf of a responsible body is void so far asit purports to –

(a) require a person to do anything which wouldcontravene any provision of, or made under,this Chapter;

(b) exclude or limit the operation of any provisionof, or made under, this Chapter; or

(c) prevent any person from making a claim underthis Chapter”.

SENDOPart IIIChapter IVArticle 45(2)& 45(3)

SENDOPart IIIChapter IArticle 26

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This means:

4.41 Any term in a contract or agreement with schools whichrequire someone to do something which would beunlawful under SENDO; exclude or limits the operationof SENDO; or prevent someone making a claim underSENDO is void.

Example 5 – An unenforceable agreement

A school agrees to a disabled pupil going on a fieldtrip provided that the parents sign an agreement:

• releasing the school from responsibility for makingany adjustments (which may be necessary toensure that the pupil benefits from the plannedactivities on the trip); and

• stating that they will not take any action if thepupil is excluded from any activities.

It is likely that this agreement is not legally binding.

An agreement to settle or compromise a claim broughtunder SENDO is not affected by this rule.

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This chapter provides a brief outline of:

• The meaning of ‘less favourable treatment’

Definition of less favourable treatment

5.1 SENDO says:

“A responsible body discriminates against adisabled person if –

(a) for a reason which relates to his disability, ittreats him less favourably than it treats orwould treat others to whom that reason doesnot or would not apply; and

(b) it cannot show that the treatment in question isjustified”.

This means:

5.2 A responsible body has a duty not to treat disabledpupils less favourably than other pupils for a reasonrelating to his or her disability when it cannot bejustified.

Less Favourable Treatment5


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Deciding if less favourable treatment has occurred

5.3 The following questions are relevant in deciding if aresponsible body has discriminated against a disabledpupil or prospective disabled pupil:

• Is the way the pupil has been or is being treatedfor a reason that is connected to his or herdisability?There has to be a link between the reason for theless favourable treatment and the pupil’s disability.

• Is the treatment less favourable than someonegets if that reason does not apply to him/her? A comparison has to be made between thetreatment the disabled pupil gets and the treatmentother pupils (who are not disabled) get or wouldget. The comparison can be real or supposed.

• Is the treatment justified under the law?There are some circumstances when treating adisabled pupil less favourably can be justified. Thelaw says that less favourable treatment that isjustified is not unlawful disability discrimination.

Justification

5.4 SENDO says that treating a disabled pupil orprospective disabled pupil less favourably is justified if itis the result of:

A permitted form of selection

• a grant-aided school applying the normaladmission criteria that was drawn up by theschool’s Board of Governors under Article 16(1) ofthe Education (Northern Ireland) Order 1997 orArticle 32(1) of the Education (Northern Ireland)Order 1998;

• any arrangements that allow an independentschool to select pupils who have a general orspecial ability or aptitude.

SENDOPart III

Chapter IArticle 15(6)(a)

SENDOPart III

Chapter IArticle 15(6)(b)

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Example 6 – School’s application of normaladmission criteria justifies their refusal to admit girlwith Chronic Fatigue Syndrome (ME)

A girl who has Chronic Fatigue Syndrome (ME) is atStage 2 of the special educational needs assessmentat primary school and her individual educational needs,such as extra time to complete tasks (such ascoursework) are generally met through the specialeducational needs framework. However, in addition tothis, SENDO also applies to how the extra help isprovided. For example, if a teacher was to refusewithout justification to allow her the extra time which,because of her disability, she requires to complete aparticular piece of work, it is likely that this would bean unlawful act under the disability discriminationduties.

The girl wished to go to a grammar school that selectsits intake on the basis of the Transfer Test results. As aresult of the effects of her disability, the girl did notperform as well in the Transfer Test as was expected.When applying for a place at the grammar school herparents submitted a request, together with supportingevidence, for her special circumstances to be takeninto account by the school when it was applying itsadmissions criteria. The school governors are under astatutory duty to consider this request and evidence.However, although her special circumstances wereproperly taken into consideration by the school, the girldid not obtain the academic standard required by theschool’s admission criteria and she was refusedadmission.

The school’s refusal to admit the girl was based on herperformance in the Transfer Test, which in turn wasrelated to her disability. However, the school appliedthe normal admission criteria permitted under Article16(1) of the Education (Northern Ireland) Order 1997(academic standard) and is likely to have a justificationfor refusing to admit the girl.

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A reason that is both material and substantial

Other than this, less favourable treatment can only bejustified if there is a reason which:

• is material to the circumstances of the particularcase (i.e. there is a clear connection between thereason for the treatment and the circumstances ofthe particular case); and

• is substantial (is more than minor or trivial).

In other words the reason for the less favourabletreatment must be related to the specific case and haveweight and some substance.

Example 7 – General admission policydiscriminates against a boy who has Downsyndrome

A mother wants her son who has Down syndrome toattend a mainstream nursery school. The schoolrefuses to admit him until he is toilet trained. That istheir policy for all pupils.

This boy has difficulty with bowel control as a result ofhaving Down syndrome, so the reason for delaying hisadmission is related to his disability. The treatment hereceives has to be compared with a pupil who hasbowel control. A pupil who has bowel control is notasked to delay admission to the school so it is lessfavourable treatment. The decision was not based onany assessment of the boy’s particular circumstancesbut on a general admission policy of the school, this isneither material nor substantial so it is unlikely that thereason for the less favourable treatment will have anyweight or substance to justify it. It is likely that thegeneral policy amounts to unlawful disabilitydiscrimination.

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No reasonable adjustment could have been made

It may not be possible to justify less favourabletreatment if there are reasonable steps that could havebeen taken to avoid putting disabled pupils at asubstantial disadvantage but were not. ReasonableAdjustments are discussed in Chapter 6.

Example 8 – Social Exclusion of boy withAsperger’s syndrome

Through a Statement of special educational needs, aprimary school boy with Asperger’s syndrome has aclassroom assistant. The teacher regularly gives himrepetitive, low-level tasks to complete with the supportof the classroom assistant who closely follows him andrestricts his interaction with his peers. The boy israrely given the opportunity to participate orcommunicate with his peers when the teacher sub-divides the pupils into groups to complete a task. Theclass teacher has limited direct contact with the pupil.

The treatment this pupil gets has to be compared withthe treatment other pupils who do not have Asperger’ssyndrome get (or would get). These pupils are notsocially excluded, nor would they be. So, for a reasonconnected to his disability, this boy is being treatedless favourably than other pupils to whom that reasondoes not apply. There were reasonable adjustmentsthat the school could have made but did not. Forexample, disability awareness training could have beenmade available to staff, advice could have been soughtfrom special schools on how best to include the pupilin group tasks, the role of the classroom assistantcould have been reviewed. The school is unlikely tobe able to justify the less favourable treatment of theboy and it is likely that this is unlawful disabilitydiscrimination.

5.5 The following examples of less favourable treatmentdrawn from everyday situations might help to illustratethis concept.

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Example 9 – School refuses to admit boy who haslearning and behavioural difficulties even though hepasses entrance test

The parents of a twelve-year-old boy apply for him togo to an independent school. He passes the entrancetest, but when the school hears that he has learningand behavioural difficulties they refuse him admission.

This boy is turned down for admission because theschool hears that he has learning difficulties andbehavioural difficulties that are directly related to hisdisability. The reason he is refused admission isrelated to his disability.

The treatment is less favourable than it is for someonewho does not have learning and behaviouraldifficulties. As the boy had already passed theentrance test, this is unlikely to be justified.

Example 10 – School wants a girl to have herlessons in a separate classroom

An eleven-year-old girl starts secondary school. Theschool wants her to have all her lessons in a separateclassroom, in case she frightens the other pupils withher muscle spasms and the uncontrollable noises shemakes.

The muscle spasms and the uncontrollable noises area natural part of her disability, so the treatment shewas to receive would be for a reason connected to thegirl's disability. The treatment she was to receive hasto be compared with the treatment of pupils who didnot have muscle spasms or make uncontrollablenoises. This girl would be isolated from the curriculumand from her classmates in a way that others wouldnot. So this girl is being treated less favourably thanother pupils to whom that reason does not apply. Thereason is based on general assumptions and is unlikelyto justify the treatment. This is likely to be unlawfuldisability discrimination.

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Example 11 – School excludes pupil with learningdifficulties from trip to the theatre

Pupils at a special school for pupils with physicaldisabilities are going on a trip to the theatre. The tripis not offered to a pupil who also has a learningdisability on the basis that the school think that hewould not understand the play.

The reason for not offering the boy the opportunity togo on the trip is his limited understanding. The reasonfor the treatment is directly related to this boy’sdisability. The treatment he was to receive has to becompared with the treatment that other pupils who didnot have limited understanding received. It is lessfavourable treatment because they were offered thetrip. The assumption that the boy would notunderstand the play was a general assumption and theschool is unlikely to be able to justify the lessfavourable treatment. This is likely to be unlawfuldisability discrimination.

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Example 12 – Boy with dyspraxia given extrahomework for not doing his homework the nightbefore

At the end of lessons, a supply teacher in a primaryschool writes the class homework on the board. A boywho has dyspraxia is unable to copy it down in the timegiven. Next day he is given extra homework to do.

The reason for the extra homework is the failure to dothe homework the night before. This is connected tohis inability to write it down in the time available, whichis a part of his disability. The treatment he receivedhas to be compared with the treatment received byother pupils who had done their homework. Theywere not given extra homework so it is less favourabletreatment. The teacher assumed that all pupils wouldbe able to write down the homework in the time at theend of the lesson. It is unlikely that the treatment canbe justified. In addition, reasonable adjustments mayhave been possible (see Chapter 6), for example, moretime could have been given to write the homeworkdown. The extra homework given to him is likely toamount to unlawful disability discrimination.

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Example 13 – Pupil with ADHD excluded fromschool trip because he is difficult to manage

A pupil at an Irish medium school has ADHD. Theschool have arranged to take his class away for theweekend to Donegal Gaeltach. The school decidesthat the pupil cannot attend because he would bedifficult to manage. They have concerns regarding hisbehaviour on the minibus and their insurance cover forhim for the trip.

This is less favourable treatment for a reason related tothe pupil’s ADHD. The treatment that the pupilreceived has to be compared with the treatment thatthe other pupils who do not have ADHD received.

The school’s reason for the less favourable treatment isbased on management, health and safety andinsurance issues. There may be enough weight andsubstance to this reason to justify the treatment.However, the responsible body has not carried out arisk assessment, explored alternative methods ofincluding the boy with the parents, or genuinelyinvestigated their insurance concerns. This is likely tobe less favourable treatment which they are unlikely tobe able to justify.

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Example 14 – Health and Safety not a justificationfor less favourable treatment

A pupil with hydrocephalus attends a mainstreamprimary school. The school are concerned that thepupil will fall and hurt herself whilst in the playgroundat break or lunchtimes. The pupil has no history offalling. As a precautionary measure and withoutcarrying out a risk assessment the school provides thegirl with a protective helmet that she must wear whenshe goes out to the playground. Some other pupils atthe school tease the girl about wearing the helmet andcall her names. The girl feels increasingly excluded byher peers because she has to wear the protectivehelmet.

Although the school’s action is motivated by a desireto protect the pupil, pupils who do not havehydrocephalus do not have to wear helmets in theplayground at break or lunchtime although they areequally likely to fall and hurt themselves.

The school carries out a risk assessment in order toassess whether or not there is a need for the pupil towear the protective helmet, and to ensure that byasking her to do so, they are not treating her lessfavourably due to her disability. The school also carriesout disability awareness-raising within the school,which includes information on how someone wearing aprotective helmet should be treated. The school alsoreviews its anti-bullying policy to ensure that it protectsdisabled pupils. These are likely to be reasonablesteps that the school could take.

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Example 15 – Teacher finds a suitable alternativefor a boy excluded from football for health andsafety reasons

A pupil who attends a special school hashydrocephalus. Whilst playing football with pupilsvisiting the school from a local mainstream school theboy gets excited and attempts to head the football.

The teacher is worried that if the pupil continues toplay he will attempt to head the ball again and thiscould have serious consequences for him. For healthand safety reasons the teacher decides that the pupilshould not continue to play. As an alternative theteacher asks the boy to assist him referee the game.This way the teacher can shield the pupil should thefootball be kicked near his head.

The treatment that the pupil received has to becompared with the treatment that the others who didnot have a shunt received. They were allowed tocontinue playing football whereas this pupil was not soit is less favourable treatment. However, the reason forthe less favourable treatment is likely to be justified asthe risk of injury has been assessed to be a health andsafety issue. In addition, an alternative is found thatallows the boy to continue enjoying the game with hispeers. The responsible body is likely to be able tojustify the less favourable treatment and in a mannerthat is inclusive.

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Example 16 – Pupil with past disability refusedaccess to work experience placement

A secondary school is arranging work experienceplacements for its pupils. Two years ago, a boyexperienced a period of depression lasting 18 months,during which he attempted suicide. The schooldecided that the placement would be too stressful forhim and did not arrange a placement for him. Theyfailed to consult the boy, seek advice about theplacement from his General Practitioner, or consideroptions for providing additional support during theplacement. This is likely to be less favourabletreatment related to the boy’s past disability and islikely to be unlawful discrimination.

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Example 17 – Pupil with autism suspended fromschool for hitting teacher

A pupil with autism goes to the front of the queue atschool dinners. A teacher standing nearby tells himnot to ‘barge in’. The pupil becomes anxious but doesnot move. The teacher insists that the pupil must not‘jump the queue’. The pupil becomes more anxiousand agitated, hits the teacher and as a result issuspended from the school.

Particular features of the boy’s autism are that he hasdifficulty in managing social situations and difficulty inmanaging increasing levels of anxiety. He is unable tounderstand the purpose of a queue and symboliclanguage such as ‘barge in’ and ‘jump the queue’. Ifthe reason for suspension (hitting the teacher) isrelated to these features of his autism, then it is lessfavourable treatment for a reason related to hisdisability. It is less favourable treatment than someonewould get if they had not hit the teacher.

Any assault is likely to represent a material andsubstantial reason justifying exclusion in terms ofpreserving order and discipline in the school.However, there may be reasonable steps that mighthave been taken to prevent the incident happening inthe first place. For example staff might have beentrained: • about autism and how the disability manifests itself;• on strategies to avoid difficulties, e.g. avoiding

negative instructions and symbolic language suchas ‘barging in’ and ‘jumping the queue’, and

• on strategies to overcome difficulties if they doarise.

For the pupil there might have been:• particular training for social situations, such as

queuing; and• the development of strategies for communicating

that he is upset or confused.If reasonable steps of this type could have been takenbut were not, it may not be possible for the school tojustify the exclusion. If steps of this type were takenbut the incident still happened, the school is likely tobe able to justify the exclusion.

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Who decides if treatment is less favourable

5.6 If a disabled pupil, a potential disabled pupil or theirparent feels that there has been less favourabletreatment a range of options are available as noted inChapter 12 of the Code. Ultimately, a SpecialEducational Needs and Disability Tribunal for NorthernIreland (SENDIST) will decide if less favourabletreatment has occurred and whether or not thattreatment was justified.

Anti-social behaviour

5.7 The duty not to treat disabled pupils less favourablydoes not mean that disabled pupils have an excuse fordisruptive or antisocial behaviour, or that they cannot bepunished for such behaviour. There has to be a directrelationship between the reason for the less favourabletreatment and the pupil's disability for it to beconsidered discrimination.

Example 18 – Banning pupil with a hearingimpairment from school trip because of his rowdyand troublesome behaviour justified because hisbehaviour was not directly connected to hishearing impairment

On a visit to the museum, the disruptive and anti-social behaviour of some pupils in the class putsfurther visits to the museum by other pupils at risk.The school decides that the pupils in question shouldbe banned from taking part in the next school tripbecause of their behaviour. One of the pupils has ahearing impairment.

The disruptive and anti-social behaviour is not directlyconnected to the pupil's hearing impairment.

The ban from the trip may be less favourable treatmentthan that given to pupils who did not behave in thisway, but it is not for a reason related to the pupil’sdisability. This is likely to be lawful.

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Reasonable Adjustments6This chapter provides a brief outline of:

• who must make reasonable adjustments;

• what are reasonable adjustments;

• when reasonable adjustments should be made;

• what are the exceptions to the reasonableadjustment duty; and

• who decides what is reasonable.

The duty to make reasonable adjustments

6.1 SENDO says:

“The responsible body for a school shall take suchsteps as it is reasonable for it to have to take toensure that –

(a) in relation to the arrangements it makes fordetermining the admission of pupils to theschool, disabled persons are not placed at asubstantial disadvantage in comparison withpersons who are not disabled; and

(b) in relation to education and associated servicesprovided for, or offered to, pupils at the schoolby it, disabled pupils are not placed at asubstantial disadvantage in comparison withpupils who are not disabled”.

This is often referred to as the reasonable adjustmentsduty.


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This means:

6.2 It is the responsible body for a school that has a duty tomake reasonable adjustments. The responsible bodyunder SENDO is the Board of Governors of a grant-aided school or the Proprietor of an independent school,or the Education and Library Board depending on whichhas the function in question (see Chapter 4).

6.3 Reasonable adjustments are the reasonable steps that aresponsible body should take in order to avoid puttingdisabled pupils and prospective disabled pupils at asubstantial disadvantage compared to other pupils.

6.4 The responsible body for a school discriminates againsta disabled pupil if, to the detriment of the pupil, it fails tomake a reasonable adjustment without justification.

6.5 Reasonable adjustments should be made for disabledpupils in general, but disability discrimination onlyoccurs if a failure to make adjustments puts anindividual pupil at a substantial disadvantage. Thismeans that the duty to make reasonable adjustments isboth an anticipatory and continuous duty and the stepsthat will need to be taken to meet this duty will continueto evolve over time.

Substantial disadvantage

6.6 The legal term “substantial disadvantage” means adisadvantage that is more than minor or trivial. Therefore, the threshold is in practice lower than mightnormally be understood by the term “substantial”.

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6.7 When deciding whether or not a pupil has experiencedor is experiencing a “substantial disadvantage”, schoolsneed to take account of a number of factors. Thesemight include:

• the time and effort a disabled pupil must invest ina task;

• the inconvenience, indignity or discomfort adisabled pupil might have suffered or be suffering;and

• the loss of opportunity or the reduced progressthat a disabled pupil may make in comparison tohis or her non-disabled peers.

Example 19 – Individual arrangements when takingexams

A secondary or grammar school that fails to negotiateindividual arrangements with the examinations bodyfor disabled pupils taking GCSE or ‘A’ Level exams(e.g. extra time) is likely to place disabled pupils at asubstantial disadvantage.

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Example 20 – Providing information in accessibleformat

A secondary school has a unit specifically for pupilswith a visual impairment. The educational needs of thepupils, such as classroom assistants, provision of largeprint or Braille versions of documents are met throughthe special educational needs framework. As a result,the school is already well equipped through the SENframework to enlarge text and provide Braille versionsof documents for pupils who use Braille. However, inaddition to this, SENDO also applies to how the extrahelp is provided or used. For example, if a teacherwas to refuse without justification to supply materialsin Braille to a pupil who requires them for a particularlesson, it is likely that this would be an unlawful actunder the disability discrimination duties.

When the pupils are working in the unit all informationis provided at the beginning of the lesson in the fullrange of formats they need. However, when they areworking with other pupils in the mainstream classes,the school regularly fails without justification to providematerials in the different formats in time for thelessons. This failure leaves the disabled pupils unableto refer to written information during the lessons, unliketheir non-disabled peers. This is likely to put thedisabled pupils at a substantial disadvantage incomparison with non-disabled pupils. The unjustifiedfailure of the school to take reasonable steps toprevent this substantial disadvantage is likely to beunlawful.

When reasonable adjustments should be made

6.8 The duty to make reasonable adjustments is ananticipatory duty, it is a proactive as well as reactiveduty. Schools cannot, in general, wait until a disabledpupil arrives at the school, or a pupil acquires adisability, or a pupil’s disability worsens before makingreasonable adjustments. This may be too late to makethe necessary changes to prevent the pupil being at asubstantial disadvantage.

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6.9 It is the duty of responsible bodies to try to ensure inadvance that disabled pupils in general would not beplaced at a substantial disadvantage, in comparison toother pupils. The potential for a substantialdisadvantage should trigger a consideration of whatreasonable steps might need to be taken, to meet theneeds of disabled pupils.

6.10 This means that responsible bodies will need to keeptheir policies practices and procedures under regularreview, to try to make sure that they do not discriminateagainst disabled pupils in general. Disabled pupils andtheir parents could be consulted in the development andreview of such policies. Written policies should bemade available in accessible formats to pupils andparents upon request.

6.11 Policies, practices and procedures need to haveflexibility, so that the school can respond to individualneeds as they arise. It is important that schools’complaints procedures include the handling ofcomplaints of disability discrimination, to try to ensurethat any difficulties can be resolved without the need toresort to the SENDIST. It is also important thatprocedures are in place to ensure that any disabilitydiscrimination by staff will be identified, immediatelyhalted and steps taken to prevent future disabilitydiscrimination.

6.12 The following are some examples of reasonableadjustments that might be made by schools.

6.13 Not every school will need to adopt the same approachas the schools in these examples. Each school shouldidentify the steps that need to be taken in theirparticular circumstances. The important point about thesteps is that they try to ensure that disabled pupils arenot at a substantial disadvantage, and provide solutionsthat meet the needs of disabled pupils. There will bemany ways of doing this.

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Example 21 – Include disability in policy on bullying

A primary school reviews its policy on bullying to makesure that it deals with bullying linked to disability. Thisis likely to be a reasonable step that the school couldtake.

Example 22 – Consideration of specialcircumstances relevant to performance in TransferTest

A boy with dyslexia, who does not have a Statement,sat the Transfer Test. Due to the effects of hisdisability he did not obtain a grade which wouldordinarily have secured him a place in the localgrammar school.

The boy’s parents submit a request, together withsupporting evidence, of his special circumstances tobe taken into account by the school when applying itsadmissions criteria. The school governors are under astatutory duty to consider this request and supportingevidence.

In order to comply with its statutory duties, includingthe duty not to discriminate against disabled pupils,the school has arranged for the Principal and theBoard of Governors to receive training on analysingspecial circumstance evidence and on their dutiesunder SENDO. This is likely to be a reasonableanticipatory adjustment for schools to make. Theschool also decided that in cases where evidence isinconclusive they will consider seeking further expertadvice.

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Example 23 – School checks that outdoor pursuitscentre is accessible before booking

A secondary school takes pupils to an outdoorpursuits centre each year. The school can get areduced rate if they make a three year booking withthe same centre. The school checks before makingthe booking that the centre’s facilities are accessible todisabled pupils if they were part of a group. This islikely to be a reasonable step that the school couldtake.

6.14 Although the changes that were made in theseexamples were of a general nature, changes may beprompted by thinking about groups of pupils orindividual pupils who might come to the school.

Example 24 – School discusses individualrequirements with parents prior to disabled pupils’admission

An independent school sets up meetings with theparents of disabled pupils who have applied foradmission to the school. The meetings are used todiscuss any reasonable adjustments that can be put inplace for the entrance exams. The particulararrangements for an individual pupil can then be put inplace before the pupil takes the entrance exam. Thisis likely to be a reasonable step that the school couldtake.

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Example 25 – School works with parents to identifyways of meeting the individual requirements oftheir son who has insulin dependent diabetes

From a pre-admittance questionnaire a primary schoolbecomes aware of a new pupil who has insulindependent diabetes. In anticipation of the pupil’sarrival the school consults with the pupil’s parentsabout the steps needed to be taken in order tomanage the boy’s diabetes on a daily basis. Thesesteps may include:

• training all staff on diabetes awareness;

• providing a quiet room for the boy to rest or wherethe parents can administer insulin injections ifnecessary during school hours; and

• drawing up and issuing guidance to all membersof staff on action that they may take if anemergency situation should arise.

These are likely to be reasonable steps that the schoolcould take.

Example 26 – Use of buddy system promotesinclusion of pupils with speech and languageimpairments in mainstream lessons

A large secondary school is opening a unit specificallyfor pupils with speech and language impairments.They plan to include the pupils from the unit inmainstream lessons. One of the challenges is how toenable the pupils from the unit to follow the timetable.They might otherwise be at a substantial disadvantage.The school has an established ‘buddy system’ as partof its anti-bullying policy. After discussions with pupils,parents and the speech and language specialistteacher, the school extends its buddy system. Itprovides training for additional volunteer buddies toaccompany disabled pupils from class to class. This islikely to be a reasonable step that the school couldtake.

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Example 27 – PE lessons devised for pupil who is awheelchair user

A boy with a spinal injury who uses a wheelchair wantsto attend his local primary school. The teachers areconcerned, as they do not know what he should do inPE lessons. The boy might be at a substantialdisadvantage if he did not do PE. The schooldiscusses with the boy and his physiotherapist howthey might adjust the PE curriculum appropriately.Amongst other things the school includes exerciseroutines to carry out on the mat, which other pupils willalso do and benefit from, and ball work sitting onchairs in a circle. These are likely to be reasonablesteps that the school could take.

Example 28 – Initial provision of accessible texthelps girl with dyslexia recognise unfamiliarvocabulary

A girl enrolled at a Grammar school has dyslexia whichmakes recognising unfamiliar vocabulary difficult forher. Consequently she finds difficulty with the ‘A’ leveltexts supplied by the school.

After discussion with the pupil and her parents theschool agrees to provide information in a moreindividually suitable format until she develops anunderstanding of the topic. In addition, the teacheralso meets regularly with the pupil to discuss herprogress and any further adjustments needed. This islikely to be a reasonable step for the school to take.

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Example 29 - Pupil with past disability protectedfrom less favourable treatment in relation to examtimetable

A post-primary pupil had Chronic Fatigue Syndrome(ME) which lasted for 18 months. Two years later thepupil still needs to be very careful not to over-exertherself in order to avoid a recurrence of her symptoms.She is due to sit her GCSE examinations. When she isgiven a copy of the exam timetable she discovers thaton one particular day she is due to sit two papers eachlasting 1 hour 30 minutes in the morning with a 15minute break between. She is due to have a break of1 hour for lunch before sitting a third paper lasting 1hour 20 minutes in the afternoon.

Realising that the examination timetable could result inthe pupil being treated less favourably the schoolcontact CCEA on the pupil’s behalf and ask forreasonable adjustments to be made. CCEA agree thatthe school can arrange for this pupil to take theseexaminations over two days. This is likely to be areasonable adjustment that the school and CCEAcould make.

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Example 30 – Reasonable adjustments made forpupil who has post-traumatic stress disorder

A primary school pupil who lost his parents as a resultof an accident whilst he was at school is fostered forthe past year by an aunt. Since the accident the boyhas displayed separation anxiety every time he has tobe separated from his aunt.

The school has a policy that those leaving pupils toschool or collecting pupils from school must leave thepupils in and collect them from the playground. Theboy is so upset when he gets to class every day thathe cannot concentrate or do his school work. It islikely that the general application of the policy onleaving and collecting pupils would mean that hewould be treated less favourably for a reason related tohis post-traumatic stress disorder. As a reasonableadjustment the school agree to permit the boy’s auntto accompany him into class every day through a backentrance and remain with him until the teacher getshim settled.

Planning reasonable adjustments

6.15 As well as fulfilling the anticipatory duty, in order to beproperly prepared, responsible bodies will need to planahead. Good information is needed about pupils whomay be coming to the school and for whom they mayneed to make reasonable adjustments.

6.16 Discussions with the local Education and Library Boardsor the Department of Education may help schools tofind out about the numbers of prospective disabledpupils and the types of disability they may have. Thesebodies in turn might wish to discuss with local healthand social services bodies, the possible numbers ofdisabled pupils who may be going to attend theirschools.

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6.17 Before a pupil is admitted, schools should considerdiscussing with parents and pupils themselves the typeof adjustments that may be needed. Consulting withthe Education and Library Board support services,voluntary groups, parent groups and special schools inaddition to the Department of Education may alsoprovide good information about appropriateadjustments.

Example 31 – Timetable adjustments lead tosuccessful inclusion of girl with OsteogenesisImperfecta (brittle bones)

A young girl who has Osteogenesis Imperfecta andwalks using a rollator wants to attend a mainstreamprimary school. The school’s buildings have narrowwalkways. For her own safety, her parents asked ifshe could leave class five minutes before the end oflessons in order to miss the rush in the corridors. Theschool carefully timetabled classes, breaks and mealtimes to ensure that the girl was able to avoid crowdedcorridors. They also created safe environments for herto mix with her peers during lunch and other breaks.This is likely to be a reasonable step for the school totake.

6.18 Parents and pupils have a right under SENDO to make arequest for confidentiality in relation to any disabilitydisclosed to the school. This is discussed further inChapter 9 (see also Chapter 10 paragraphs 10.5 – 10.8for information on other conventions relating to therights of children and young people). However, sharinginformation with teachers and others may help theschool to make reasonable adjustments to make surethat individual pupils can access the school and thecurriculum. Information sharing and confidentiality arediscussed in more detail in Chapter 9.

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Example 32 – Consulting parents and otherprofessionals helps school devise staff training onpupil’s rare condition

A small rural primary school has no experience ofdisabled pupils. The school is going to admit a five-year-old girl with a rare syndrome involving moderatelearning difficulties, poor muscle tone, and speech andlanguage difficulties. The Principal consults the girl'smother, the Education and Library Board SupportServices, Speech and Language Therapist,Occupational Therapist, Physiotherapist and a localvoluntary organisation. Together they devise a series oftraining events that enhance staff knowledge andconfidence and the girl has a positive start to school.This is likely to be a reasonable step to take to preventthe pupil from being placed at a substantialdisadvantage.

A continuing anticipatory responsibility

6.19 The anticipatory nature of this duty means thatresponsible bodies need to ensure that staff areappropriately trained in disability awareness and thatprocedures are in place to identify and cater for a pupil’sindividual needs.

6.20 Schools need to keep their policies, practices andprocedures under review to make sure that:

• generally, education provided is accessible todisabled pupils; and

• individually, the needs of disabled pupils are beingmet and so they are not being substantiallydisadvantaged.

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6.21 To achieve these goals there must be goodcommunication between the school, pupil and parentsboth at the time of admission and throughout the pupil’seducation. This may involve proactive requests for oneto one discussions with pupils and/or their parents toassess how effective any adjustments made are.

Example 33 – School reviews and amends policy

A girl with one arm was happily included in her nurseryclass, which had a separate playground from the mainschool. When she moves up to Primary 1 she starts tobe bullied by older pupils in the main playground. Herteacher realises this because the girl becomeswithdrawn in the classroom.

The school’s anti-bullying policy includes bullyingrelated to disability. The school decides that it needsto take a number of steps, including:

• fully investigating the teacher’s concerns inaccordance with their anti-bullying policy;

• informing the parents of all the childrenconcerned;

• setting up support mechanisms for the individualchild to mitigate the likelihood of any furtherbullying and to assist her in reporting any furtherincidents of bullying to a member of staff;

• addressing the whole issue of name-calling andbullying, including bullying related to disability, intwo school assemblies; and

• undertaking work on disability issues in a numberof classes.

These are likely to be reasonable steps that the schoolcould take.

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Exceptions to the reasonable adjustmentduties

6.22 SENDO says that the requirement to make reasonableadjustments:

“does not require the responsible body to –

(a) remove or alter a physical feature (for example,one arising from the design or construction ofthe school premises or the location ofresources); or

(b) provide auxiliary aids or services”

This means:

Physical barriers

6.23 Schools are not immediately required to change the waybuildings are constructed, although they could if theywanted to. Structural changes to buildings are requiredby SENDO by a long-term accessibility planningapproach.

6.24 This does not mean that schools should do nothingwhere there is a physical barrier to a pupil. Schools arestill required to take reasonable steps to ensure that adisabled pupil is not at a substantial disadvantage. Itmay be possible to make reasonable adjustments thatwill be enough in the short term to make sure thatschool buildings and the curriculum are accessible todisabled pupils.

6.25 The improvement of school buildings over time, in orderto make the curriculum more accessible to disabledpupils, is covered by the duties on schools andEducation and Library Boards to prepare ‘accessibilityplans and strategies’ (Chapter 11).

SENDOPart IIIChapter IArticle 17 & 18


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6.26 Accessibility planning guidance for schools andEducation and Library Boards may be obtained from theDepartment of Education (DENI).

Auxiliary aids and services

6.27 Within the Special Educational Needs Frameworkschools and Education and Library Boards determinethe special educational provision required to meet apupil’s needs. Depending on the individualcircumstances of the pupil, auxiliary aids and servicesmay be provided through this Framework.

The disability discrimination duties in SENDO do notprovide an extra way of getting special educationalprovision.

Example 34 – How SEN provisions are used iscovered by the disability discrimination law

A deaf girl attends her local primary school with theregular support of a classroom assistant, and regularvisits from a peripatetic teacher of deaf pupils.Although she is deaf, her spoken language and use ofEnglish is well established. Her educational needs,such as a classroom assistant and radio aid are metthrough her special educational needs Statement.SENDO covers how the extra help is used. Forexample, if a teacher was to refuse to use the radiomicrophone, it is likely that this would be an unlawfulact under the disability discrimination duties.

6.28 Where pupils attend an independent school at theirparents’ expense, the school normally arranges theextra educational help, and parents are usually chargedfor this.

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Example 35 – An independent school can ask theparent of a disabled pupil to pay for additionaleducational help

A pupil with moderate learning difficulties attends anindependent school. He has four lessons a week witha specialist teacher. In addition to the normal schoolfees the parents are asked to pay the exact cost of thelessons. This is likely to be lawful. Less favourabletreatment might occur if charges were made at a levelintended to deter disabled pupils from coming to theschool.

Reasonableness

Who decides what is reasonable

6.29 It is the responsible body that must decide for itselfwhat is reasonable in the circumstances of a particularschool. An explanation is given in Chapter 4 of theCode of who or what a responsible body is (4.25 –4.29). Decisions made by responsible bodies arenevertheless open to legal challenge, (Chapter 12)where the Tribunal will ultimately decide whether or notan adjustment was reasonable.

When it is reasonable to take a particular step

6.30 Responsible bodies need to take reasonable steps tomake sure that disabled pupils are not at a substantialdisadvantage compared to other pupils. There may bea range of ways in which adjustments might be made.In considering whether it is reasonable to have to take aparticular step, responsible bodies should take intoaccount the guidance contained in this Code.


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6.31 SENDO requires that reasonable steps be taken toensure that disabled pupils will be included in everyaspect of school life. A careful consideration of howthis is best achieved will help the responsible body todetermine what a reasonable step might be. Anyrelevant factors need to be explored and balanced.They need to be weighed against the potential for adisabled pupil to be placed at a substantialdisadvantage.

6.32 The following list highlights some of the factors thatmight need to be taken into account in decidingwhether a step is reasonable or not:

• the extent to which the step would achieve asuccessful outcome;

• the financial resources available to the responsiblebody;

• the cost of taking a particular step;

• the extent to which it is realistic to take a particularstep;

• the extent to which additional educational provisionwill be given to disabled pupils at the schoolthrough the Special Educational Needs Framework,provision for the pupil from the school’s ownbudget or sought by a school from the Educationand Library Board;

• health and safety requirements;

• the interests of other pupils and potential pupils; or

• the need to keep up academic, musical, sportingand other standards.

Where a factor is relevant it needs to be considered. Itshould be used to help determine what steps might betaken in order to ensure that a disabled pupil is not at asubstantial disadvantage.

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Justifying a failure to make reasonable adjustments

6.33 In some circumstances there may be justification for afailure to make reasonable adjustments. SENDO saysthat failing to make reasonable adjustments can only bejustified if:

“the reason for it is both material to thecircumstances of the particular case andsubstantial”.

6.34 If a responsible body is to justify making a decision notto make reasonable adjustments for a disabled pupil, ithas to give a sound reason. There has to be a clearconnection between the reason that the school givesand the circumstances of the particular case. Thereason also has to be a substantial reason; that is, onethat is more than minor or trivial.

6.35 The responsible body may choose to make certainadjustments rather than others. For example, on thegrounds of cost or how likely it is to be successful. Onother occasions careful consideration may result in adecision that there is no adjustment that it would bereasonable to make, for example, where a disabledpupil would not meet an objective standard needed totake part in a particular activity even with theadjustment.

6.36 The need to maintain standards should not be used as ameans to exclude a disabled pupil from an activity.Creative ways of including disabled pupils should besought.


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6.37 Some examples of schools considering what might bereasonable are given below. Each example isconsidered in the light of relevant factors to determinehow the responsible body might meet the reasonableadjustments duty. Each example shows differentfactors and it is possible to interpret each in a numberof different ways. There is no perfect answer to eachexample; rather, there is a range of possibilities. Theexamples show the process to be gone through, ratherthan the particular conclusion that is reached.

Example 36 – The need to maintain standards

A school, which includes a number of disabled pupils,plans a musical Christmas production. One of thedisabled pupils has a powerful singing voice and isconsidered for a lead role. However, the stage isinaccessible.

The disabled pupil’s participation will help to maintainhigh standards set in past musical productions. Theschool decides that if they were to run the productionover two nights instead of one, seating for theaudience could be arranged around the outside of theground floor space allowing the centre area to be usedfor the production. There would be no additional costto this option but the audience might not get such agood view. The school decides that, in order not toput the disabled pupil at a substantial disadvantage,and having considered the need to maintain standards,it will rearrange the audience seating and run theproduction on two evenings. The school hasconsidered the factors and has identified a reasonableadjustment. In making this adjustment it is likely to beacting lawfully.

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Example 37 – The interest of other pupils

An exchange trip is offered to pupils studying Frenchin a grammar school. Accessible transportarrangements were made but at the last minute asuitable host who had been identified to accommodatea pupil who is a wheelchair user drops out. ThePrincipal of the school liaises with the Frenchorganisers about an alternative host but they areunsuccessful in identifying one. It was not realistic forthe school to allow the disabled pupil to go without ahost.

The school thought about cancelling the trip, but if theother pupils did not go they would lose the opportunityof improving their French. In the interests of otherpupils the school decides to go ahead with the trip butarranges additional tuition in school for the disabledpupil. The school has considered the factors and,whilst it has not been able to identify a reasonableadjustment that would enable the disabled pupil to goon the trip, it is likely to be acting lawfully.

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Example 38 – Health & Safety

Two physically disabled pupils are going to beadmitted to a primary school next term. The school isconcerned that the pupils’ standing frames will presenta health and safety risk to other pupils:

• in the playground; and

• during an emergency evacuation.

The pupils’ educational and physiotherapy programmerequires regular movement and the use of the standingframes. Without this movement, the pupils wouldbegin to develop contractures. They would also not beable to access parts of the curriculum where standingis necessary.

The school has to decide what steps it might bereasonable to take. The school seeks suitable,qualified opinions on the risks of standing framesbeing used in the school environment and on thepupils not being able to access them to stand in. Thelocal health and safety officer believes that there is apotential risk in the frames being used in theclassroom and in the playground but advises on howto minimise the risk. The local fire officer is alsocontacted to train staff on safe evacuation of childrenwith mobility difficulties.

The school considers the options and identifies asuitable place to store the frames when not in use, thattakes account of health and safety requirements. Inmaking this adjustment it is likely to be acting lawfully.

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Victimisation7This chapter provides a brief outline of:

• who is regarded as a victim; and

• the circumstances in which victimisation occurs

7.1 Victimisation is a special form of discrimination. Aperson can claim that they have been victimisedwhether or not he or she has a disability.

Definition of victimisation

7.2 A person victimises someone if they treat that personless favourably than they treat (or would treat) otherpeople in the same circumstances (whether or not theperson is disabled) because they have:

• brought proceedings under the DisabilityDiscrimination provisions of SENDO or the DDA1995 (whether or not they are later withdrawn);

• given evidence or information in connection withsuch proceedings;

• done anything else under the disabilitydiscrimination provisions of SENDO or the DDA1995; or

• alleged that someone has contravened the disabilitydiscrimination provisions of SENDO.

Chapter 12 explains who may take legal action.

SENDOPart IIIChapter IVArticle 43

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Example 39 – Non-disabled pupil acts as a witnessin a complaint by a disabled pupil against a teacher

A non-disabled pupil acts as a witness in a complaintby a disabled pupil against a teacher and afterinvestigation of the matter the Principal upholds thedisabled pupil’s complaint. Afterwards, the non-disabled pupil finds that her homework grades in thesubject taught by this teacher are consistently lowerthan is usual for her. Her parents are told at a parents’evening that her behaviour is ‘not acceptable’,although she has never been in trouble in this or anyother class. She and her parents believe that theseevents are connected to her support for her disabledfriend. Although the pupil concerned is not disabled,this is likely to be victimisation under SENDO, andtherefore unlawful.

7.3 SENDO also says that a person victimises someone ifthey treat that person less favourably than they treat (orwould treat) other people in the same circumstances(regardless of whether or not the person is disabled)because they believe or suspect that they had done orintend to do any of the above things.

False allegations of disability discrimination

7.4 However, it is not victimisation to treat a person lessfavourably because that person has made an allegationthat was false and not made in good faith.

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Example 40 – A pupil with epilepsy makes falseallegations that she is constantly excluded fromafter-school activities

A pupil with epilepsy makes a series of allegations thatshe and other disabled pupils are constantly excludedfrom after-school activities (such as sport and music)because of their disabilities. She is sometimes difficultand disruptive in the after-school sessions and hasupset other pupils. Her complaints have been directedagainst the member of staff co-ordinating after-schoolclubs at the school. The allegations are investigatedand found to be without any foundation, and areconsidered to have arisen from a personal vendettaagainst the staff member. Other disabled pupils in theschool feel that they have been positively included inthe after-school sessions and have no complaint.

After discussion, the co-ordinator decides that he willallow the pupil to continue in the after-school activities,provided that she modifies her behaviour and does notdisrupt the other pupils. Because of the particularcircumstances, this is not likely to be regarded asvictimisation and hence not likely to be unlawful. Thepupil is being asked to modify her behaviour forreasons unrelated to her disability but directly relevantto the well-being of other pupils.

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• how the lack of knowledge about a pupil’s disabilityis / is not a defence against a claim of disabilitydiscrimination;

• what schools might reasonably do to find out aboutthe existence of or the nature of a pupil’s disability,and

• whether they are to be able to rely on the lack ofknowledge defence subsequently.

A defence against a claim of disabilitydiscrimination

8.1 SENDO says:

“In relation to a failure to take a particular step, aresponsible body does not discriminate against aperson if it shows –

(a) that, at the time in question, it did not knowand could not reasonably have been expectedto know, that he was disabled; and

(b) that its failure to take the step was attributableto that lack of knowledge”.

“The taking of a particular step by a responsiblebody in relation to a person does not amount toless favourable treatment if it shows that at the timein question it did not know, and could notreasonably have been expected to know, that hewas disabled”.

Lack of KnowledgeDefence8



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This means:

8.2 A responsible body cannot be held legally responsiblefor a claim of unlawful disability discrimination if it didnot know, and could not reasonably have beenexpected to know that a pupil was disabled. This isknown as the 'lack of knowledge defence.' The defenceapplies to disability discrimination by:

• less favourable treatment; and

• failure to make reasonable adjustments.

When lack of knowledge is not a defence against aclaim of disability discrimination

8.3 Parents and pupils have a right under SENDO to make arequest for confidentiality in relation to any disabilitydisclosed (Chapter 9) and this is in keeping with theright to respect for privacy afforded to children underArticle 8 of the European Convention on Human Rights.

8.4 However, schools need to know that a pupil is disabledand they need to have some knowledge of the nature ofthe disability, if they are to ensure that they do not treatthe pupil less favourably. This also applies if the schoolis to make reasonable adjustments for the pupil.

8.5 Although the reasonable adjustments duty relates todisabled pupils in general, the school will need to knowabout individual pupils’ disabilities, to ensure that theyknow when and how to apply any specific arrangementsneeded.

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8.6 The lack of knowledge defence is irrelevant to theanticipatory duty. Even if there are no disabled pupils ina school at present, the responsible body needs toconsider what changes may be needed, draw up oramend their policies and produce plans of action in theexpectation that there will be disabled pupils in theirschool in the future. Written policies and plans ofaction should be made available, upon request, in anaccessible format, to any prospective pupils and theirparents as well as pupils at the school and their parents.

8.7 The anticipatory nature of the duties under SENDOmeans that many changes will need to be madeindependently of any knowledge of individual pupils’and particular disabilities. In making such changes inthis way, a responsible body may be able to ensure, inadvance, that future disabled pupils are not placed at asubstantial disadvantage.

8.8 In the majority of cases, schools will be aware of apupil’s disability because of arrangements for theassessment of, and the provision for additionaleducational support, through the SEN framework. Inmany cases parents will volunteer information abouttheir son or daughter's disability.

8.9 However, it may not always be immediately obvious thata pupil is disabled. For example, a learning difficulty,underachievement and difficult behaviour may, in somecases, indicate an underlying disability which has notyet been identified. In the absence of disclosure ordiagnosis, a responsible body that has taken noreasonable steps to find out about the possibleexistence of a disability may have difficulty claiming notto have known about the existence of a disability.

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8.10 It is in the interests of responsible bodies to ensure thatschools are proactive in seeking out information. If theyare not, the responsible body may not be able to claimlack of knowledge about a pupil’s disability. In seekingout information responsible bodies may, for example:

• want to establish an open and welcomingatmosphere and culture at the school, so thatpupils and parents feel comfortable aboutdisclosing information about a disability;

• ask parents, when they visit or during theadmissions process, about the existence of andnature of any disability that their son or daughtermay have;

• provide continuing opportunities to shareinformation.

Example 41 – Proactively seeking information

A primary school decides in light of SENDO that it willtry to find out at the induction process / admissionstage if any of the new pupils have a disability. Inrecognition that pupils may acquire a disability afteradmission, the school decides that it will repeat thisprocess at each new school year. Statistics gatheredwill be recorded for the annual school census andused to identify what adjustments the school needs tomake to be fully accessible in a managed, plannedway. The school decides that in order to encourageparents to disclose a child’s disability they will outlinethe reasons why they are seeking this information andthe benefits of disclosure for pupils. They also giveassurances that personal information will not bepassed on to third parties without permission, and thatany request for confidentiality will not be affected bydisclosure of this information.

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8.11 If the school did not know and could not reasonablyhave been expected to know about the existence of apupil’s disability, the responsible body is likely to be ableto rely on the lack of knowledge defence, if a claim ofdisability discrimination is made against it.

Example 42 – Nursery School has lack ofknowledge defence against claim of disabilitydiscrimination

A nursery school admits a four-year-old boy withcoeliac disease. All new parents are asked tocomplete a form and are encouraged to discuss withthe school their child’s general development and anyspecific needs. However, the boy’s parents do notinform the school of his condition. On another child’sbirthday, all the pupils were given a piece of birthdaycake. The cake makes the boy with coeliac disease ill.The parents complain that the school hasdiscriminated against their son because of his disabilityby giving him food that affects his health. They feelthat none of the pupils should have been offered cake.The school had no information about the boy’s specialdietary needs and staff would have offered appropriatealternatives to cake, if they had been aware of theproblem. There are other children in the nurseryschool with special dietary needs which are alwaysmet by the nursery school. It is likely that the schoolhas acted lawfully.

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8.12 However, if any member of staff at the school has beeninformed that a pupil has a disability, then theresponsible body may not be able to rely on the lack ofknowledge defence. Schools should communicaterelevant information about a pupil’s disability to anymember of staff who may need to know. This willinclude all staff who may be in contact with the pupil atany point during the day. Sometimes it may benecessary to share this information with people outsidethe school (see Example 44). A request forconfidentiality from the pupil or pupil’s parent may affectthis. See Chapter 9 for further information onconfidentiality.

Example 43 – School’s failure to share informationresults in teacher treating a pupil less favourably

After a period of illness, a primary school pupil returnsto school at the end of the summer term. The motherdiscloses to her daughter’s teacher that as a result ofher illness her daughter has developed a heartcondition that will impact upon her energy levels. Dueto a busy end of term the teacher forgets to record thisinformation or pass it on to the girl’s teacher for thenew term. Not long into the new school year theincreased demands of her new class cause the girl tofeel tired and her concentration in class is affected.Assuming that the girl is simply not paying attention,the teacher gives her extra homework as an incentiveto work harder in class. It is unlikely that the schoolcould argue that it did not know about the girl’scondition. It is unlikely that the responsible body couldrely on a lack of knowledge defence if the pupil or herparents were to make a complaint of disabilitydiscrimination.

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• who can make a request for confidentiality; and

• how the duty to provide reasonable adjustmentsand other duties under SENDO may be affected bya request for confidentiality.

Definition of confidentiality

9.1 Disabled pupils and their parents have a right to expectthat information about the pupil’s disability will not bedisclosed to anyone without their consent.Confidentiality is central to the trust between teachersand their pupils and parents. Without assurances aboutconfidentiality, pupils and their parents may be reluctantto give schools the information they need in order toprovide good educational experiences.

9.2 A confidentiality request is defined in SENDO as:

“a request which asks for the nature, or asks for theexistence, of a disabled person's disability to betreated as confidential and which satisfies either ofthe following conditions –

(a) it is made by that person’s parent; or

(b) it is made by the person himself and theresponsible body reasonably believes that hehas sufficient understanding of the nature ofthe request and of its effect”.

Confidentiality9


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Who can request confidentiality

9.3 A parent can ask the school to keep the existence orthe nature of their son or daughter’s disabilityconfidential.

9.4 A request for confidentiality may also come from a pupilhim or herself. SENDO says that the school should takethe request into account if it reasonably believes thatthe pupil understands what he or she is asking to bedone, and what the effect of the request will be.

What a responsible body should do

9.5 When a responsible body is determining what action isnecessary in order for it to comply with its duty not totreat a disabled pupil less favourably, the extent towhich taking that action is consistent with complyingwith a request for confidentiality must be taken intoaccount.

9.6 Schools should also take a request for confidentialityinto account when deciding what reasonableadjustments it will make for a disabled pupil. The natureof the particular steps to be taken for that pupil mayneed to be modified to take account of the request forconfidentiality. As a matter of good practice, schoolscould involve pupils and their parents in consultationabout the reasonable steps to be taken to preventdisability discrimination and any implications orlimitations that a confidentiality request may have on thesteps to be taken by the school.

9.7 Schools could develop, implement, monitor and reviewa confidentiality policy as a matter of good practice (seeChapter 10 at 10.34 – 10.37). The written policy shouldbe made available in accessible formats to pupils andtheir parents.

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9.8 The confidentiality policy might state thosecircumstances (for example child protection) in whichthe responsible body believes that it would not be in thebest interests of pupils to maintain confidentiality.Where possible, schools should tell the parents or pupilof the need to disclose a disability despite a request forconfidentiality before doing so.

Example 44 – To ensure a pupil’s safety, thePrincipal shares confidential information about hisepilepsy with swimming pool staff

The parents of a nine-year-old boy with epilepsy askthe Principal to keep the existence and the nature oftheir son’s disability confidential. Their son’smedication has been effective in reducing the numberof seizures that he has and he is unlikely to have aseizure in school. However, on seeking professionaladvice, the Principal is told that it would be unsafe forthe boy to go swimming without informing the staff atthe pool. The parents do not want them to be told.The Principal decides that the safety of the boydictates that he should not go swimming unless staffat the pool can be told. He decides in order to ensurethat the boy is not treated less favourably he must tellthe swimming pool staff about his disability. Heinforms the parents that he will have to do this. This islikely to be lawful.

The impact of a request for confidentiality

9.9 A request for confidentiality may limit what theresponsible body can do by way of making reasonableadjustments (see Example 45). However, this is not ajustification for failing to consider what adjustmentscould be made without compromising the request forconfidentiality.

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Example 45 – Parents request for confidentialityabout their daughter’s leukaemia prevents schoolplanning positively to maximise the girl’s progressand personal support in the school

The parents of a six-year-old girl ask the Principal toregard information about her leukaemia as confidential,and ask that other staff at the school are not informed.The parents are concerned that she should be treated'positively and as if everything is normal'. As a result,the Principal does not disclose information about thepupil to any of the staff in the school.

The pupil has a number of days away from school andperiods of sickness and tiredness because of hertreatment. Unaware of the girl’s disability, the classteacher expresses concern about the girl’s absencesfrom school and her poor schoolwork and asks tomeet the parents. They still say nothing to the teacherabout their daughter's condition. After a further roundof treatment, the parents complain that the classteacher has 'picked on' their daughter for uncompletedclass work.

In this case there were reasonable adjustments thatthe school might have taken, but could not because ofthe parents’ confidentiality request. For example, inrespect of teaching and learning expectations, theschool could have sought advice from the girl’soncology nurse or paediatrician, to support the classteacher in managing periods of sickness and tirednessand determining when it might be appropriate to makedemands. If the Principal had not been prevented bythe request for confidentiality from sharing informationabout the girl’s disability, the Principal, class teacherand special educational needs coordinator would havebeen able to plan, review and amend adjustments thatwould have maximised the pupil’s educationalprogress and her personal support in the school.

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9.10 When a request for confidentiality is made, consultationbetween pupils, parents and the school in agreeing,monitoring and reviewing the reasonable steps to betaken by the school is crucial in order to mitigate anyfuture complaints.

9.11 If a school is concerned about the impact of aconfidentiality request, it should explain this to theparents and to the disabled pupil him or herself (wherepossible). Where a parent, or a pupil who clearlyunderstands the impact of the confidentiality request,remains opposed to sharing the relevant informationabout their disability, the school will need to discusswith them any alternative steps that might be taken tominimise any substantial disadvantage to the pupil.

Example 46 – Impact of request for confidentialityexplained to pupil who has a bowel disorder

A pupil has a bowel disorder which causes her to have“accidents” and to need to wear incontinence pants.The parents and the pupil tell the Primary SchoolPrincipal that they want this information keptconfidential.

At the beginning of the following term the girl’s classare told that weekly swimming lessons will form part oftheir curriculum activities. The girl is excited aboutlearning to swim and her parents give writtenpermission for her to attend these classes.

The Principal asks to talk to the parents and explainsthat the swimming pool has a club-room changingfacility which means that the girl will have to change infront of her peers. The Principal explains that unlessthe teacher in charge is made aware of the girl’sdisability, no arrangements can be made to protecttheir daughter’s privacy. The parents reconsider theirdecision and allow the Principal to inform the teacherin charge.

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9.12 It is recommended that the details of a pupil’s medicalcondition, treatment needs or disability be considered tobe confidential except where the sharing of thatinformation is necessary to ensure the child’s welfare orbest interests. Chapter 10 (paragraphs 10.5 – 10.8)gives information on other conventions relating to therights of children and young people.

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This chapter sets out some guidance on ways to helpensure that disabled pupils and prospective pupils arenot discriminated against. Additional guidance oninclusive schooling can be found in the Department ofEducation’s Supplement to the Code of Practice on theIdentification and Assessment of Special EducationalNeeds.

Introduction

10.1 The guidance notes in this chapter are building blocksto inclusive education and should be embraced with theaim of increasing the accessibility of school life for all.

10.2 Outlined below are some good practice measures whichschools are recommended to consider putting in placein order to be more inclusive of all pupils regardless ofdisability and to prevent disability discrimination ineducation. The measures are neither all-inclusive norexhaustive and should not be regarded as the onlymeasures that might be taken.

10.3 These recommendations aim to:

• highlight practical ways in which a school can befully inclusive;

• help schools establish an atmosphere and culture inthe school which is open, welcoming and treatspupils with dignity and respect, regardless ofdisability;

Practical Guidance forInclusive Education10

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• assist schools to develop an environment in whicheveryone working with the authority of the schoolunderstands in clear terms what behaviour is and isnot acceptable and that appropriate disciplinaryaction will be taken against those who act in adiscriminatory manner;

• give guidance on how schools can build anenvironment in which pupils or their parents canraise complaints of disability discrimination withoutfear of repercussions or victimisation, and in whichthey can be confident that their complaints will betreated seriously and dealt with effectively.

10.4 The success of good practice measures requires thecommitment of everyone in the school. Providers ofeducation could by words and actions demonstrate theircommitment to fully integrating disabled pupils into theentire educational experience.

Other conventions relating to the rights of childrenand young people

10.5 In seeking to build an inclusive school life it isrecommended that those responsible for the provisionof education and associated services, admissions,suspensions and expulsions consider other widerconventions relating to the rights of children.

10.6 These provisions may include:

• United Nations Convention on the Rights of theChild (UNCRC);

• European Convention of Human Rights (ECHR); and

• Human Rights Act 1998.

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10.7 Disabled children and young people have the exactlythe same rights as their peers. It may be useful forschools and Education and Library Boards to considerin particular:

• be involved in the decisions affecting them andhave their opinions taken into account (Article 12,UNCRC);

• information (Article 17, UNCRC);

• meet together with their peers (Article 11, ECHR);

• an education which develops their personality andtalents to the full (Article 23, UNCRC; Article 2,Protocol 1 ECHR);

• respect for privacy (Article 8, ECHR).

10.8 Further information about UNCRC and ECHR isavailable from:

• Human Rights Commission;

• Northern Ireland Commissioner for Children andYoung People (NICCY);

• Children’s Law Centre; or

• Law Centre (NI).

These and other organisations that may provideinformation about this are noted in Chapter 14 of thisCode.

Respect for a pupil’s rights may help educationproviders to avoid potentially discriminatory situations.

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The diverse nature of disability

10.9 Around one in five people in Northern Ireland has adisability (approximately 340,0003). The nature, extentand effects of disabilities vary widely, as do individualrequirements for overcoming any difficulties. If educationproviders are to avoid discriminating, they need tounderstand this, and to be aware of the effects theirattitudes, decisions and actions – and those of peopleworking with their authority – may have on disabledpupils and prospective pupils. Many of the steps thatcan be taken to avoid disability discrimination cost littleor nothing and are practical steps to enhance inclusiveeducation.

Practical Steps

Avoid making assumptions

10.10 Any given disability will affect different people indifferent ways, so individual requirements will differ also.It is therefore important not to make assumptions aboutdisabled pupils and prospective pupils. The followingsuggestions may help to avoid disability discrimination:

• do not assume that because a pupil’s disabilitycannot be seen, he or she is not disabled. Manydisabilities are not visible. Do not assume thatreasonable adjustments are not required;

• do not assume that because you do not know ofany disabled pupils attending the school, that thereare none;

• do not assume that all disabled pupils have aStatement of special educational needs;

• do not assume that most disabled pupils usewheelchairs;

3 This figure is obtained from the Census 2001. It should be noted that the term‘disability’ was defined in this Census as ‘any long-term illness, health problem ordisability which limits daily activities or work’.

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• see the person and the pupil, not the disability;

• do not assume that pupils with learning disabilitiescannot be valuable students, or that they cannotparticipate in the full range of educational life;

• do not assume that a pupil with mental ill healthcannot do demanding school work;

• do not assume that all blind people read Braille orhave guide dogs; and

• do not assume that all deaf people use signlanguage.

Talk to disabled pupils and their parents

10.11 It is recommended that responsible bodies talk todisabled pupils or their parents in order to obtain indepth their views, attitudes and opinions and identifyconcerns or issues. The aim of discussions is to identifyadjustments appropriate to the pupil’s needs.

10.12 Listening carefully to disabled pupils and finding outwhat they want may help responsible bodies to meettheir obligations by identifying the best way of meetingdisabled pupils’ requirements.

10.13 There is a better chance of reaching the best outcome ifdiscussions are held with disabled pupils andprospective pupils at an early stage.

10.14 Often, discussing with disabled pupils and their parentswhat is necessary to meet their requirements willreassure a responsible body that suitable adjustmentscan be carried out at little expense and with very littleinconvenience.

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Example 47 – School Principal identifies adjustmentappropriate to a pupil’s requirements that involvesno financial outlay

A primary school is about to admit a girl who is hard ofhearing. A statutory assessment of her educationalneeds has not yet been completed. Assuming that aninduction loop system in the girl’s classroom will benecessary the Principal researches the installation costso that he can request interim funding for this from theEducation and Library Board. Before making therequest the Principal arranges a meeting with the girl’sparents to discuss more fully their daughter’srequirements. During the meeting the parents informthe Principal that until their daughter’s educationalprovision is fully assessed the only adjustment thatthey would ask the school to make is that the teacheralways faces the girl when speaking. This is likely tobe a reasonable adjustment that the school couldmake.

Seek expert advice

10.15 Although SENDO does not specifically require anyone toobtain expert advice about ensuring school life isaccessible for disabled pupils, in practice it maysometimes be necessary to do so. Expert advice mightbe especially useful if a pupil has recently becomedisabled or if the effects of a pupil’s disability becomemore marked.

10.16 It is recommended that information or views aboutsolutions to meet the needs of disabled pupils beobtained from the disabled pupil him or herself or theirparents – they are the people with the expert knowledgeof that individual’s disability.

10.17 The personal knowledge and expertise of others withinthe school may also be sought.

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10.18 In addition, expert advice about meeting the needs ofdisabled pupils may be available from groups such as:

• Home/School Liaison Officers;

• Special Educational Needs Departments ofEducation and Library Boards;

• Education and Library Board Specialist SupportServices;

• outside agencies such as Occupational Therapy &Physiotherapy Services;

• Special Schools;

• Behaviour Support Team;

• local and national disability organisations;

• Council for Catholic Maintained Schools;

• Northern Ireland Council for Integrated Education;


• Governing Bodies Association;

• Department of Education; or

• Non-Governmental Organisations / DisabilityVoluntary groups.

This list is not exhaustive. In addition, it isrecommended that service / support providers becognisant of the individual needs of disabled pupils forwhom English is not a first language.

A list of useful contacts is included in Chapter 14.

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Example 48 – Shared curriculum links betweenmainstream and special schools

A mainstream post-primary pupil was involved in a caraccident and had an arm amputated. He is due toreturn to school after the summer holidays. Whilstconfident that most of the curriculum will be accessibleto him, the school are unsure about what PE activitiesthey can offer. The Principal contacts a nearby schoolfor pupils with physical disabilities and asks for advice.The Principals of both schools develop a shared PEprogramme that meets the needs of the boy’smainstream class and a same age class in the specialschool. Specialist training is made available to themainstream teachers in their own school on an outreachsupport basis and also in the special school setting.This builds in the possibility of attending another schoolon a part time basis. This is likely to be a reasonableadjustment for the school to make.

Raise pupils’ awareness of disability

10.19 Schools have a unique opportunity to raise awarenessof disability amongst those who are the future ofNorthern Ireland. Community and voluntary groups aswell as staff from special schools may be willing toassist schools in the preparation and delivery ofdisability awareness sessions.

Develop links

10.20 It may be possible for mainstream and special schoolsto develop links and arrange joint activities that coulddevelop disability awareness through natural friendshipsamongst peers.

10.21 Mainstream schools that are over-subscribed forparticular subjects on the curriculum might be able toarrange for some pupils to augment classes in a localspecial school thereby allowing that school to offer moresubjects to their own pupils.

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10.22 When all the jig-saw pieces of SENDO fit togetherinclusion is demonstrated at its best in our schools.Many schools in Northern Ireland are already workingtogether towards a more inclusive education system.

Example 49 – How SENDO can work demonstratedin collaboration between mainstream and specialschools

The parents of a girl who has Down Syndrome andsevere learning difficulties have spoken to theEducation and Library Board’s Advice and InformationService and Board officers about their daughter’seducational needs. The parents express a preferencefor their daughter to attend a mainstream primaryschool. The school has never previously admitted apupil with severe learning difficulties and feel that theydo not have the knowledge or expertise to meet thegirl’s needs.

Taking account of the parents’preference, and with theiragreement, the Education andLibrary Board have made aStatement of the girl’s specialeducational needs that makesprovision for 3 days attendanceat a special school and 2 daysattendance at a mainstreamschool. The Statement alsoprovides the support of aclassroom assistant.

A named officer of the Education and Library Boardprovides information, advice and support to theparents and schools.

Both schools review their policies, procedures andpractices to ensure they cover the unique situation ofthe pupil. They work together to identify reasonableadjustments that should be made in order to ensurethat the girl is included in every aspect of school lifeand will not treated less favourably than other pupils atboth schools.

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Example 49 continuedThe special school offersoutreach support to themainstream school. Theyprovide training for teachersand classroom assistants whowill be with the girl inmainstream school. Initially aclassroom assistant from thespecial school will accompanythe girl during her attendanceat mainstream school and thiswill become a reciprocalarrangement wherebyclassroom assistants from themainstream school will

accompany the girl during her attendance at thespecial school.

The target outcome of theoutreach support model beingused is that staff in themainstream school will bemore confident in being ableto meet the needs of the childmore completely becausethey will gain knowledge,skills and expertise. This mayassist the school to fulfil itsanticipatory duty in the future.

The aim for this pupil is toidentify and provide increased

opportunities for her to have access to the fulleducational curriculum at mainstream schoolsupported by the special school as required. Theaccessibility plans of both schools reflect thestrategies identified as a means of increasing accessto the curriculum for prospective pupils.

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Monitor the number of disabled pupils andprospective disabled pupils

10.23 The Department of Education may monitor and analysethe number of pupils with a Statement of specialeducational needs and/or a disability attending orseeking admission to schools in Northern Ireland. Thisanalysis may help schools by informing their futureplanning – see Chapter 11 for a more detailedconsideration of the duty SENDO places on schools toproduce Accessibility Plans.

Plan ahead

10.24 The duties which SENDO places on education providersare owed to disabled pupils in general so it is necessaryto anticipate what might be required and plan ahead.

10.25 Considering the needs of a range of disabled pupilswhen planning for change (such as when planning waysof delivering the curriculum or associated services,redecoration or refurbishing a building) is likely to makeit easier to implement adjustments for individual pupilswhen the need arises. Some sources of expert help arenoted at paragraph 10.18 and Chapter 14.

10.26 SENDO places planning duties on education providersin relation to making the whole educational experiencemore accessible to disabled pupils and prospectivedisabled pupils. Guidance on Accessibility Plans forschools and Accessibility Strategies for Education andLibrary Boards is available from the Department ofEducation. See Chapter 11 of the Code for anexplanation of Accessibility Strategies and AccessibilityPlans and Chapter 14 for other sources of information.

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Implement inclusion policies, procedures &practices

10.27 Schools are more likely to be inclusive, to comply withtheir duties under SENDO, and to minimise the risk ofcomplaints being taken against them, if they implementanti-discriminatory policies and practices. It isrecommended that Boards of Governors make this astrategic priority.

10.28 Schools could review existing policies, practices andprocedures to ensure that they do not adversely impactupon disabled pupils or prospective pupils.

10.29 Schools, with the involvement of disabled pupils, coulddevelop and implement a clear, comprehensive,effective and accessible inclusion policy, which coversdisability.

10.30 It is recommended that the policy is accessible to pupilsand their parents and endorses in clear terms theschool’s commitment to the promotion of inclusion forall pupils. The policy might also make it clear thatdisability discrimination is unlawful and will not betolerated in the school.

10.31 It is recommended that the effectiveness of policies,practices and procedures is regularly monitored. It isalso recommended that this involves consultation withdisabled pupils and their parents. The policy could thenbe reviewed and revised in light of this monitoringinformation.

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Review anti-bullying policy & procedures

10.32 It is recommended that schools ensure that their anti-bullying policy and procedures cover complaints ofbullying for a reason related to a pupil’s disability.

10.33 Further information on bullying policies can be obtainedfrom the Department of Education. A list of usefulcontacts is included in Chapter 14.

Implement a confidentiality policy

10.34 Confidentiality is central to trust between teachers andtheir pupils and parents. Without assurances aboutconfidentiality, pupils and their parents may be reluctantto give schools the information they need in order toprovide good educational experiences.

10.35 With the involvement of disabled pupils, schools couldimplement a policy that:

• protects the right of disabled pupils andprospective pupils to privacy;

• ensures that information about a pupil’s disability istreated with strict confidentiality; and

• ensures that, where possible, information about apupil’s disability is not be shared with anyonewithout the permission of the pupil or his or herparents.

10.36 It is recommended that the effectiveness of policies andprocedures is regularly monitored. The policies andprocedures could then be reviewed and revised in lightof the monitoring information.

10.37 Confidentiality issues are discussed in more detail inChapter 9 of the Code.

Consult on policies

10.38 When developing and implementing policies andprocedures it is recommended that schools consult withpupils registered at the school and their parents.Additional advice may be available from organisationssuch as:

• Department of Education;

• Council for the Curriculum Examinations andAssessment;

• Education and Library Board;

• Council for Catholic Maintained Schools;

• Northern Ireland Council for Integrated Education;

• the Governing Bodies Association;


• the Northern Ireland Commissioner for Children andYoung People; or

• voluntary disability groups.

10.39 Talking with disabled pupils and their parents providesimportant feedback on the impact of the school’spolicies, practices and procedures and the effectivenessof any reasonable adjustments made.

10.40 Having policies and practices to combat disabilitydiscrimination, together with regular consultation withpupils and their parents, is likely to minimise disputes.However, when disputes do occur, it is in the interests ofresponsible bodies to attempt wherever possible toresolve them as they arise.

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Communicate policies

10.41 It is vital that schools effectively communicate theirinclusion policy, anti-bullying policy and procedure andall other policies or procedures they may have relatingto equal opportunities to all staff, those working with theauthority of the school, pupils and their parents.

10.42 This could be done, for example:

• for staff, through the school’s ethos statement, staffbriefings, contracts of employment, staffhandbooks, notice boards, circulars, writtennotifications to individual employees, disabilityawareness training, induction training, managementtraining, training manuals etc;

• for parents through, for example, parents’ evenings,school brochures, circulars, or letters in addition tothe school’s ethos statement;

• for pupils, for example, through school assemblies,pastoral care, peer education, citizenship lessons inclass, or incorporated into pupil day books andlesson planning; and

• for everyone, through for example the schoolwebsite.

10.43 It is recommended that Boards of Governors, especiallywhen recruiting new staff, ensure that their policies,practices and procedures are widely known so thateveryone is aware of their equal opportunities anddisability policies and practice.

10.44 It is recommended that Boards of Governors, andPrincipals make it clear to everyone acting with theauthority of the school, what is required of them withregard to their duties and responsibilities under SENDO.

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10.45 It is recommended that all school policies andprocedures are accessible in respect of their format,content and implementation to all employees and thoseworking with the authority of the school, particularlythose who are themselves disabled.

Deal effectively with complaints

10.46 It is recommended that all complaints are dealt with inline with the Education and Library Board’s existingComments / Complaints Procedures or EmployingAuthority Procedures. It is recommended thatComplaints Procedures are accessible in respect offormat, content and implementation.

10.47 It is essential that any complaints of disabilitydiscrimination are dealt with promptly, seriously,sympathetically, confidentially and effectively. Bydealing with complaints in this way, responsible bodiesare reinforcing their message that they consider anycomplaint of disability discrimination a serious matter.

10.48 It is recommended that pupils and their parents areproactively informed whom to contact in the school ifthere is a complaint of alleged disability discrimination.Pupils and their parents should be able to speak of theirconcerns in confidence and be provided with support,advice and assistance to resolve their complaint.

10.49 Staff may require appropriate training in order to enablethem to deal effectively with complaints of allegeddisability discrimination.

10.50 It is also vital that reasonably practicable steps aretaken to ensure that individuals who do raise complaintsof disability discrimination are not victimised because oftheir complaints.

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10.51 Monitoring complaints may assist accessibility planningby identifying issues for consideration (see Chapter 11).

10.52 In addition, any further action in relation to employeeswho unlawfully discriminate could be considered.

Provide training and guidance

10.53 It is recommended that Responsible Bodies ensure thatall employees and those working with the authority ofthe Principal and Senior Management Team haveaccess to appropriate training and/or guidance toensure that they understand their responsibilities underSENDO. This would include people such as:

• Boards or Governors;

• Principals;

• all teachers, not just special educational needscoordinators (SENCOs);

• Classroom Assistants;

• Caretakers;

• Catering staff;

• Cleaning staff; and

• volunteer helpers (such as parents helping withafter-school activities).

This list is neither exhaustive nor all inclusive. Schoolsneed to identify those working with the authority of theirparticular school.

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10.54 It is recommended that schools provide information forall staff on their disability policies and procedures.

10.55 It is also recommended that training is evaluated,monitored and reviewed on a regular basis so thatfurther training needs can be identified.

The Equality Commission has no remit for this aspect ofSENDO and cannot advise Education and LibraryBoards about implementing an accessibility strategy, orschools about implementing an accessibility plan. TheDepartment of Education can provide guidance on theseduties.


• The long-term planning duties SENDO places uponEducation and Library Boards and Schools.

Accessibility strategies

11.1 SENDO places a duty on Education and Library Boardsto produce a written strategy of how, over time, theyintend to improve:

• physical accessibility of school premises;

• accessibility of the curriculum; and

• provision of information in alternative formats whereit is usually provided in writing.

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Accessibility Strategies& Accessibility Plans11

Example 50 – Education and Library Boards planprovision of accessible information

The five Education and Library Boards are preparingtheir Accessibility Strategies covering the 2005 - 2008period. In order to improve disabled pupils access tothe curriculum, they work together to ensure that all 5Strategies contain a commitment to carry out acombined information audit which will identify:

• what educational information is available informats accessible to disabled pupils;

• what the gaps in the provision of such informationare; and

• how the 5 Boards can work in collaboration tomeet any needs identified.

The collaborative approach of the Education andLibrary Boards exhibits good practice.

11.2 The Board’s accessibility strategy will set out its plans inrespect of the controlled schools under its managementin the area. The Board does not have to produce astand-alone strategy. It can choose the mostappropriate format to record its strategy, for example bydovetailing it with another of its plans.

11.3 Boards have a duty to take into account any guidanceissued by the Department of Education, about thecontent of their strategy, the form in which it is to beproduced, and those who should be consulted in thepreparation of the strategy.

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11.4 Boards also have a duty to review and revise theirstrategies taking into account any guidance on this bythe Department of Education.

11.5 SENDO places a duty on Education and Library Boardsto make a copy of its accessibility strategy available forinspection in an accessible format to any person whorequests this.

Accessibility plans

11.6 SENDO places a duty on Boards of Governors of grant-aided schools or the proprietor of an independentschool to prepare a written accessibility plan for aprescribed period in three main areas:

• physical accessibility of school premises;

• accessibility of the curriculum; and

• provision of information in alternative formats whereit is usually provided in writing.

11.7 It is the duty of the Board of Governors or the proprietorto implement the accessibility plan.

11.8 Schools will have to keep their plans under review, andrevise them if necessary in light of that review.

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SENDOPart IIIChapter IArticle 17(7)(b)


Example 51 – School makes plans to improveaccess to buildings and the curriculum for pupilswith a visual impairment

The Board of Governors of a secondary school ispreparing their Accessibility Plan. They decide that itwould be difficult for any pupils with visualimpairments coming to the school to find their wayaround. They include in their Accessibility Plan thatwithin the next two years, when re-painting thebuilding as part of on-going maintenance, they will usesuitable contrasting colours. This will make it easierfor all pupils to find their way around the building.

In order to improve access to the curriculum for pupilswith visual impairments, the school also decides todraw up and implement a policy that all writteninformation produced by the school will be provided topupils in a font size no smaller than 14. They make acommitment to meet the individual requirements of anypupil who has a visual impairment for whom this fontsize would be unsuitable.

11.9 Grant-aided schools are already under a duty to includecertain information in their governors’ annual report.SENDO places an additional duty on them to includeinformation about their accessibility plans in that report.

11.10 Independent schools are required by SENDO to make acopy of their plans available for inspection by anyonewho asks to see it at a reasonable time. Reports shouldbe available in an accessible format. They are alsorequired by SENDO to make a copy available to theDepartment of Education upon request.

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11.11 SENDO states that the Boards of Governors orproprietors shall have regard to the need to allocateadequate resources for implementing the plan.

11.12 SENDO states that the normal inspection of a schoolunder Article 102 of the Education and Libraries(Northern Ireland) Order 1986:

“may extend to the performance by the Board ofGovernors or proprietor of functions in relation tothe preparation, publication, review, revision andimplementation of an accessibility plan for theschool”.

11.13 The Department of Education will be producingguidance on accessibility planning. Further informationcan be obtained from the Department of Education at:

Equality UnitDepartment of EducationRathgael HouseBalloo RoadBangorBT19 7PRTelephone: 028 9127 9279Fax: 028 9127 9100Internet: www.deni.gov.ukE-mail: [email protected]



This chapter provides a brief overview of:

• routes to challenge disability discrimination;

• who may take legal action;

• time limits; and

• legal remedies available

Routes to challenge disability discrimination

12.1 There are various courses of action that can be taken toresolve an allegation of disability discrimination:

• internal complaints procedures of the responsiblebody;

• independent conciliation;

• legal action; or

• the Expulsion Appeals Tribunal (paragraph 12.17 –12.18)

Internal complaints procedures of theresponsible body

12.2 A parent, disabled pupil or prospective disabled pupilmay contact the responsible body directly to discussconcerns and a claim of disability discrimination. Thismay be facilitated through the responsible body’sinternal complaints procedure. This may help resolvethe dispute quickly without needing to take legal action.

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Resolving DisabilityDiscrimination Disputes12

12.3 It is important to remember however, that there are timelimits for bringing a claim to the Tribunal. Seeparagraphs 12.10 to 12.12 and paragraph 12.19 formore specific details on time limits. If the time limits arenot met an individual may lose the right to take legalaction and using internal procedures may not be goodjustification for failing to meet the time limits.

Independent conciliation

12.4 Under SENDO, the Commission has the power to set upan independent conciliation service to promote thesettlement of disputes in relation to disabilitydiscrimination. Pupils and/or parents are not requiredby law to enter into this conciliation process. They havea right to proceed directly to the Special EducationalNeeds and Disability Tribunal (SENDIST) to make acomplaint of unlawful disability discrimination.

12.5 This conciliation service is different from the DisputeAvoidance and Resolution Service (DARS) set up by theEducation and Library Boards (Chapter 3 paragraphs3.14 and 3.17). The DARS will only deal withdisagreements in relation to a responsible body’s dutiesunder Special Educational Needs law. The conciliationservice set up by the Commission will only deal withdisputes in relation to a responsible body’s disabilitydiscrimination duties under SENDO.

12.6 Disputes may be referred to the conciliation service onlyif both the person claiming disability discrimination andthe responsible body agree to this. However, theconciliation service does not have power to impose asettlement on either party.

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12.7 Agreeing to the conciliation process does not prevent aclaimant from deciding to take a complaint to theTribunal. A claim of unlawful disability discriminationmust be made to the SENDIST within 6 months of thedate of the alleged disability discrimination. This timelimit is extended by 2 months if the dispute is referred toconciliation before the expiry of the 6-month period.

12.8 No information disclosed to a conciliator during theconciliation process may be used in any subsequentTribunal case without the permission of the party whoprovided the information.

Legal action

12.9 If a pupil or their parent feels that disabilitydiscrimination has occurred the parent can make acomplaint on behalf of the pupil to the SpecialEducational Needs and Disability Tribunal (SENDIST).

Time limits for lodging a complaint of disabilitydiscrimination with SENDIST

12.10 A claim of unlawful disability discrimination must bemade to the SENDIST within 6 months of the date of thealleged act of discrimination.

12.11 If the matter has been referred for conciliation (see 12.4to 12.8) the time in which a claim to the SENDIST maybe made may be extended by 2 months, making thetotal time limit 8 months from the date of the alleged actof disability discrimination.

12.12 Where disability discrimination takes place over a periodof time, the 6 months may begin at the date of the last(or most recent) discriminatory act. The SENDIST alsohas discretion in certain circumstances to allow a casewhich would otherwise be out of time to proceed, whereit would be just and reasonable to do so.

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How to contact SENDIST

12.13 The Special Educational Needs and Disability Tribunalcan be contacted at:

2nd FloorAlbany House73-75 Great Victoria StreetBelfastBT2 7AF Telephone: 028 9032 2894 Fax: 028 9032 2924E-mail: [email protected]

SENDIST remedies

12.14 SENDIST has wide powers to order any remedy it thinksappropriate with the exception of financialcompensation.

12.15 Although SENDIST will not be able to award financialcompensation it will be able to order schools, orEducation and Library Boards, to take compensatoryaction to take account of past disability discriminationand shape the future prospects of the disabled pupil.Examples of the kind of orders that SENDIST mightmake are:

• that the Education and Library Board or schoolprovide disability awareness training for some or allstaff;

• that the Education and Library Board or schoolprepare guidance on combating disabilitydiscrimination for issue to all staff;

• that the Education and Library Board’s EqualOpportunities Officer arrange and attend, atspecified times, meetings between the school andthe pupil’s parents to review what reasonableadjustments (short of adjustments to the physicalpremises or provision of auxiliary aids and services)might be required;

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• that the school / Education and Library Boardchange policies. For example, those that preventpupils with visual impairments going into thescience laboratory, those that prevent disabledpupils going on certain school trips, and anti-bullying policies so that they deal with bullying onthe grounds of disability;

• that additional tuition is provided to enable a pupilto catch up on things he has missed due todisability discrimination (such as science lessons inthe previous example);

• that a library is relocated to the ground floor (shortof requiring an adjustment to the physicalpremises), or if that is not possible, that the schoolarranges for an accessible mobile library to visit theschool regularly or provides a reading room for useby the whole class;

• that an independent school must admit a disabledpupil (where the school had previously refused) ormust admit the pupil on the same terms as pupilswho are not disabled (where, for example, theschool had offered a place but at an unreasonablyincreased fee); or

• that a grant-aided school, which had suspended adisabled pupil for a reason related to his disability,must provide additional tuition to enable the pupilto catch up on education missed due to thedisability discrimination.

12.16 SENDIST will be able to set deadlines when directingaction by schools and Education and Library Boards. Ifa responsible body fails to comply within the deadlines,the parent can ask the Department of Education to givea direction requiring them to comply.

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Expulsion Appeals Tribunal

12.17 Claims of disability discrimination in relation toexpulsions from grant-aided schools cannot be made tothe SENDIST. Such claims will be made through theEducation and Library Board Expulsion AppealsTribunal. SENDIST will, however, hear claims of disabilitydiscrimination in relation to expulsions from independentschools.

12.18 SENDIST will hear claims of disability discrimination inrelation to suspensions from all schools becausesuspensions are not covered in the existing appealarrangements.

Time limits for lodging an expulsion appeal

12.19 The time limit for an appeal against an expulsion is 10days. If you want to make an appeal you must write tothe Clerk to the Expulsion Appeals Tribunal at your localEducation and Library Board within 10 days ofnotification of the pupil’s expulsion.

Further information and advice

12.20 Parents, children or young people wanting to make acomplaint against a responsible body under SENDO canget further information and advice about the processfrom the Commission. Those making a complaint to theSENDIST or Expulsions Appeals Tribunal may in somecircumstances be eligible to receive assistance from theCommission. Please contact the Commission’sStrategic Enforcement Division as early as possible.

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12.21 The Commission can also provide advice to responsiblebodies about their legal responsibilities under SENDO.

12.22 For further information about:

• rights under SENDO;

• responsibilities under SENDO;

• challenging claims of disability discrimination; or

• applying for assistance to legally challengedisability discrimination,

please contact the Commission – details at the back ofthe Code.

This chapter explains other duties that responsiblebodies and providers of education have under SENDO.It focuses on the residual duty of Education and LibraryBoards.

General education functions

13.1 SENDO makes it unlawful for an Education and LibraryBoard in Northern Ireland to discriminate against adisabled pupil or a disabled prospective pupil in thedischarge of its functions under various Orders relatingto education, in particular:

• the Education and Libraries (Northern Ireland) Order1986 (except Article 37 and Part VII);

• the Education Reform (Northern Ireland) Order1989;

• the Education and Libraries (Northern Ireland) Order1993;

• the Education (Northern Ireland) Order 1996;

• the Education (Northern Ireland) Order 1997;

• the Education (Northern Ireland) Order 1998; and

• the Education and Libraries (Northern Ireland) Order2003.

The residual duty is intended to cover the generaleducation related functions of Education and LibraryBoards that affect pupils or prospective pupils generally.

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Other Duties onEducation and LibraryBoards

13

SENDOPart IIIChapter IArticle 19 & 20

13.2 Education and Library Boards come under the disabilitydiscrimination in schools’ duties in respect of theschools for which they are responsible. The residualduty applies to treating disabled pupils and prospectivepupils less favourably or failing to make reasonableadjustments in relation to the more general functions ofthe Boards.

13.3 Education and Library Boards should have regard to alltheir functions under the full range of educationlegislation to ensure that they are not treating disabledpupils less favourably and are planning how to meettheir reasonable adjustments duty. Such functions mayinclude:

• special educational needs provision under theEducation (Northern Ireland) Order 1996;

• provision of transport;

• policies (such as the Board’s policies on specialeducational needs, capital building programmes,sports, cultural activities, transport, early yearsprovision);

• the Board’s policy and arrangements on schooladmissions and exclusions; and

• the allocation of the Board’s budget and any otherresources which might directly affect disabledpupils.

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Example 52 – Education and Library Boardre-negotiates contract for home-school transport

Home-school transport for disabled pupils alwaysleaves a school at 3.30pm. The Education and LibraryBoard reviews its transport policy when it realises thatdisabled pupils who are dependent on taxis might beat a substantial disadvantage if they were not able tostay to after-school clubs. The Board re-negotiates itscontract with the taxi firm so that it is possible tospecify later departure times. This is likely to be areasonable adjustment that the Board could make.

13.4 These duties apply to prospective as well as to currentpupils and cover the full range of educational provision,including nursery education, arrangements for educationotherwise than in school, and pupil referral units as wellas the school stages of education.

13.5 When considering which SENDO duties apply to itsschools’ functions, an Education and Library Boardshould first look at whether the duties not todiscriminate in admissions, associated services,suspensions / expulsions or victimisation of pupilsapply. If they do not, then the duty not to discriminateunder the residual duty of Boards will apply.

13.6 In consequence of these duties, Education and LibraryBoards may wish to review the full range of educationalpolicies, practices and procedures for current andprospective pupils to ensure that they do notdiscriminate against disabled children and youngpeople.

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14.1 Free information can be obtained from:

The Equality Commission for Northern IrelandEquality House7-9 Shaftesbury SquareBelfastBT2 7DPTelephone: 028 9050 0600Textphone: 028 9050 0589Fax: 028 9031 5993E-mail: [email protected]: www.equalityni.org

The Code and Information about SENDO are alsoavailable in other languages and formats, including largeprint, Braille and audiotape. If you require furtherassistance, please contact the Commission.

14.2 Contact details of additional sources of informationfollows:

Advice NI1 Rushfield AvenueBelfastBT7 3FPTelephone: 028 9064 5919Fax: 028 9049 2313E-mail: [email protected]

Belfast Education and Library Board40 Academy StreetBelfastBT1 2NQTelephone: 028 9056 4000Textphone: 18001 028 9056 4000Website: www.belb.co.uk

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Useful Contacts14

Blind Centre for Northern Ireland70 North RoadBelfastBT5 5NJTelephone: 02890 500 999Fax: 028 9065 0001E-mail: [email protected]: www.bcni.co.uk

Children’s Law Centre3rd FloorPhilip House123-137 York StreetBelfastBT15 1ABTelephone: 028 9024 5704Members Advice Line: 028 9043 4242Fax: 028 9024 5679E-mail: [email protected]: www.childrenslawcentre.org

CHALKY FREEPHONE0808 808 5678 (open 9am-5pm week days)

Comhairle na GaelscolaiochtaWestgate House4 Queen StreetBelfastBT1 6EDTelephone: 028 9032 1475Fax: 028 9032 4475Website: www.comhairle.org

Compass Advocacy GroupCastle CroftMain StreetBallymoneyBT53 6TDTelephone: 028 2766 9030E-mail: [email protected]

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Contact a Family Northern IrelandBridge Community Centre50 Railway StreetLisburnBT28 1XPTelephone: 028 9262 7552E-mail: [email protected]: www.cafamily.org.uk/nireland

Council for Catholic Maintained Schools160 High StreetHolywoodBT18 9HTTelephone: 028 9042 6972Fax: 028 9042 4255Website: www.onlineccms.vhost.tibus.com

Council for the Curriculum Examinations andAssessment (CCEA)29 Clarendon RoadClarendon DockBelfastBT1 3BGTelephone: 028 9026 1200 Fax: 028 9026 1234E-mail: [email protected]

Deaf Association of Northern IrelandNorthern Ireland OfficeSuite 3Cranmore House611b Lisburn RoadBelfastBT9 7GTText: 028 9038 7706 Voice: 028 9038 7700 Fax: 028 9038 7707 Videophone: 028 9068 2677 E-mail: [email protected]: www.britishdeafassociation.org.uk

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Department of EducationRathgael House43 Balloo RoadBangorBT19 7PRTelephone: 028 9127 9279 Textphone: 028 9127 9472Fax: 028 9127 9100E-mail: [email protected]: www.deni.gov.uk

Disability ActionPortside Business Park189 Airport Road WestBelfastBT3 9EDTelephone: 028 9029 7880Fax: 028 9029 7881Textphone: 028 9029 7882E-mail: [email protected]: www.disabilityaction.org

Equality 2000Willowbank Community Resource CentreCarland RoadDungannonBT71 4AATelephone: 028 8775 3253E-mail: [email protected]

General Teaching Council for Northern Ireland4th FloorAlbany House73-75 Great Victoria StreetBelfastBT2 7AFTelephone: 028 9033 3390Fax: 028 9034 8787E-mail: [email protected]: www.gtcni.org.uk

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Governing Bodies Association (NI)c/o Belfast Royal Academy3-17 Cliftonville RoadBelfastBT14 6JLTelephone: 028 9075 0610Fax: 028 9075 0606E-mail: [email protected]: www.governingbodiesassociation.com

Irish National Teachers Organisation23 College GardensBelfastBT9 6BSTelephone: 028 9038 1455

Law Centre (NI)124 Donegall StreetBelfastBT1 2 GYTelephone: 028 9024 4401Fax: 028 9023 6340Textphone: 028 9023 9938E-mail: [email protected]: www.lawcentreni.org

Law Centre (NI) Western Area Office9 Clarendon StreetLondonderryBT48 7ETTelephone: 028 71262 433Fax: 028 7126 2343E-mail: [email protected]

MencapAnnadale AvenueBelfastBT7 3JHTelephone: 028 9069 1351Website: www.mencap.org.uk

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National Association of HeadteachersCarnmoney HouseEdgewater Business ParkEdgewater RoadBelfastBT13 9JDTelephone: 028 9077 6633

National Association of Schoolmasters& Union of Women TeachersBen Madigan HouseEdgewater Office ParkEdgewater RoadBelfastBT3 9JQTelephone: 028 9078 4480

North Eastern Education and Library BoardCounty HallBallymenaBT42 1HNTelephone: 028 9448 2252Fax: 028 9448 2238E-mail: [email protected]: www.neelb.org.uk

Northern Ireland Association of CitizensAdvice Bureau (NIACAB)Regional Office11 Upper CrescentBelfastBT7 1NTTelephone: 028 9023 1120Fax: 028 9023 6522E-mail: [email protected]

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Northern Ireland Commissioner for Childrenand Young People (NICCY)Millennium House17-25 Great Victoria StreetBelfastBT2 7BNTelephone: 028 9031 1616E-mail: [email protected]: www.niccy.org

Northern Ireland Council for Integrated EducationAldersgate House13-19 University RoadBelfastBT7 1NATelephone: 028 9023 6200Fax: 028 9023 6237Website: www.nicie.org

Northern Ireland Human Rights CommissionTemple Court39 North StreetBelfastBT1 1NATelephone: 028 9024 3987Textphone: 028 9024 9066Fax: 028 9024 7844E-mail: [email protected] Website: www.nihrc.org

Office of Public Sector Information (OPSI)St. Clements House2-16 ColegateNorwichNR3 1BQTelephone: 016 0372 3011Website: www.opsi.gov.uk

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PAPA (Parents and Professionals and Autism)Resource CentreDonard HouseKnockbracken Healthcare ParkSaintfield RoadBelfastBT8 8BHTelephone: 028 9040 1729Fax: 028 9040 3467E-mail: [email protected]: www.autismni.org

Parent’s Advice CentreHead OfficeFloor 4Franklin House12 Brunswick StreetBelfastBT2 7GETelephone: 0808 8010 722 – Helpline FreephoneTelephone: 028 9031 0891 – Office LineFax: 028 9031 2475E-mail: [email protected]: www.pachelp.org

Positive Futures2b Park DriveBangorBT20 4JZTelephone: 028 9147 5720

Rethink Northern Ireland‘Wyndhurst’Knockbracken Heatlh Care ParkSaintfield RoadBelfastBT8 8BHTelephone: 028 9040 2323Fax: 028 9040 1616E-mail: [email protected]: www.rethink.org

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Royal National Institute of the Blind (RNIB)40 Linenhall StreetBelfastBT2 8BATelephone: 028 9032 9373Fax: 028 9027 8119E-mail: [email protected]: www.rnib.org.uk

Royal National Institute of the Deaf (RNID)Wilton HouseCollege Square NorthBelfastBT1 6ARTelephone: 028 9032 1733Website: www.rnid.com

Special Education Needs Advice Centre (SENAC)Graham House, Knockbracken Healthcare ParkBelfastBT8 8BHTelephone: 028 9070 4606Website: www.down-sydrome.org.uk

South Eastern Education and Library BoardGrahamsbridge RoadDundonaldBT16 2HSTelephone: 028 9056 6200Fax: 028 9056 6266/7E-mail: [email protected]: www.seelb.org.uk

Southern Education and Library Board3 Charlemont PlaceThe MallArmaghBT61 9AYTelephone: 028 3751 2200E-mail: [email protected]: www.selb.org 143

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Special Educational Needs and Disability Tribunal2nd Floor, Albany House73-75 Great Victoria StreetBelfastBT2 7AF Telephone: 028 9032 2894 Fax: 028 9032 2924E-mail: [email protected]

The Stationery Office (TSO)16 Arthur StreetBelfastBT1 4GDTelephone: 018 9023 8451Fax: 028 9023 5401E-mail: [email protected]: www.tso.co.uk

Triangle Housing Association60 Eastermeade GardensBallymoneyBT53 6BDTelephone: 028 2766 6880E-mail: [email protected]: www.trianglehousing.org.uk

Ulster Teachers Union94 Malone RoadBelfastBT9 5HPTelephone: 028 9066 2216E-mail: [email protected]

Western Education and Library Board1 Hospital RoadOmaghBT79 0AWTelephone: 028 8241 1411Fax: 028 8241 1400E-mail: [email protected]: www.welbni.org144

CHAPTER 2 9DEFINITION OF A DISABLED PERSON– WHO HAS RIGHTS UNDER SENDO

Example 1 11A long-term effect

CHAPTER 4 27OVERVIEW OF DUTIES ANDRESPONSIBILITIES UNDER SENDO

Example 2 42A substitute teacher discriminates against disabledpupils but school’s lack of knowledge of the act is nodefence

Example 3 44A school likely to have a defence against a claim ofunlawful disability discrimination because it took actionto stop the discrimination

Example 4 45A school is responsible for disability discrimination by aparent acting with its authority

Example 5 46An unenforceable agreement

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Index of Examples

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CHAPTER 5 47LESS FAVOURABLE TREATMENT

Example 6 49School’s application of normal admission criteria justifiestheir refusal to admit girl with Chronic Fatigue Syndrome(ME)

Example 7 50General admission policy discriminates against a boywho has Down syndrome

Example 8 51Social Exclusion of boy with Asperger’s syndrome

Example 9 52School refuses to admit boy who has learning andbehavioural difficulties even though he passes entrancetest

Example 10 52School wants a girl to have her lessons in a separateclassroom

Example 11 53School excludes pupil with learning difficulties from tripto the theatre

Example 12 54Boy with dyspraxia given extra homework for not doinghis homework the night before

Example 13 55Pupil with ADHD excluded from school trip because heis difficult to manage

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Example 14 56Health and Safety not a justification for less favourabletreatment

Example 15 57Teacher finds a suitable alternative for a boy excludedfrom football for health and safety reasons

Example 16 58Pupil with past disability refused access to workexperience placement

Example 17 59Pupil with autism suspended from school for hittingteacher

Example 18 60Banning pupil with a hearing impairment from schooltrip because of his rowdy and troublesome behaviourjustified because his behaviour was not directlyconnected to his hearing impairment

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CHAPTER 6 61REASONABLE ADJUSTMENTS

Example 19 63Individual arrangements when taking exams

Example 20 64Providing information in accessible format

Example 21 66Include disability in policy on bullying

Example 22 66Consideration of special circumstances relevant toperformance in Transfer Test

Example 23 67School checks that outdoor pursuits centre isaccessible before booking

Example 24 67School discusses individual requirements with parentsprior to disabled pupils’ admission

Example 25 68School works with parents to identify ways of meetingthe individual requirements of their son who has insulindependent diabetes

Example 26 68Use of buddy system promotes inclusion of pupils withspeech and language impairments in mainstreamlessons

Example 27 69PE lessons devised for pupil who is a wheelchair user

Example 28 69Initial provision of accessible text helps girl with dyslexiarecognise unfamiliar vocabulary

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Example 29 70Pupil with past disability protected from less favourabletreatment in relation to exam timetable

Example 30 71Reasonable adjustments made for pupil who has post-traumatic stress disorder

Example 31 72Timetable adjustments lead to successful inclusion ofgirl with Osteogenesis Imperfecta (brittle bones)

Example 32 73Consulting parents and other professionals helps schooldevise staff training on pupil’s rare condition

Example 33 74School reviews and amends policy

Example 34 76How SEN provisions are used is covered by thedisability discrimination law

Example 35 77An independent school can ask the parent of a disabledpupil to pay for additional educational help

Example 36 80The need to maintain standards

Example 37 81The interest of other pupils

Example 38 82Health & Safety

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CHAPTER 7 83VICTIMISATION

Example 39 84Non-disabled pupil acts as a witness in a complaint bya disabled pupil against a teacher

Example 40 85A pupil with epilepsy makes false allegations that she isconstantly excluded from after-school activities

CHAPTER 8 87LACK OF KNOWLEDGE DEFENCE

Example 41 90Proactively seeking information

Example 42 91Nursery School has lack of knowledge defence againstclaim of disability discrimination

Example 43 92School’s failure to share information results in teachertreating a pupil less favourably

CHAPTER 9 93CONFIDENTIALITY

Example 44 95To ensure a pupil’s safety, the Principal sharesconfidential information about his epilepsy withswimming pool staff

Example 45 96Parents request for confidentiality about their daughter’sleukaemia prevents school planning positively tomaximise the girl’s progress and personal support in theschool

Example 46 97Impact of request for confidentiality explained to pupilwho has a bowel disorder

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CHAPTER 10 99PRACTICAL GUIDANCE FORINCLUSIVE EDUCATION

Example 47 104School Principal identifies adjustment appropriate to apupil’s requirements that involves no financial outlay

Example 48 106Shared curriculum links between mainstream andspecial schools

Example 49 107How SENDO can work demonstrated in collaborationbetween mainstream and special schools

CHAPTER 11 117ACCESSIBILITY STRATEGIES& ACCESSIBILITY PLANS

Example 50 118Education and Library Boards plan provision ofaccessible information

Example 51 120School makes plans to improve access to buildings andthe curriculum for pupils with a visual impairment

CHAPTER 13 131OTHER DUTIES ON EDUCATIONAND LIBRARY BOARDS

Example 52 133Education and Library Board re-negotiates contract forhome-school transport

How can we help?The Equality Commission for Northern Ireland can give advice andinformation on the Special Educational Needs and Disability(Northern Ireland) Order 2005 (SENDO) through training, telephoneand textphone advice, booklets and leaflets or we can meet with you.

5 January 2006ISBN 1-903941-82-2

For further information, please contact us at:Promotion and Education DepartmentEquality Commission for Northern IrelandEquality House7-9 Shaftesbury SquareBelfast BT2 7DP

Telephone: 028 9050 0600

Textphone: 028 9050 0589

Fax: 028 9024 8687

E-mail: [email protected]

Website: www.equalityni.org


NIA 275/03


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