But is it discrimination?

If there’s one phrase that you could cite young people saying it’s quite possibly ‘I know my rights!’ The thing is though do they? Do you?

Somewhere back in the very early ‘80s I sat an ‘O’ level in commerce. The Sale of Goods Act 1979 was in its infancy and the teaching of this had quite a profound effect on me – I learned my retail rights! But not only that, I learned what you can and can’t argue for. The importance of checking out what the law states was paramount. I have cited the Act on a fair few occasions to sort out faulty goods. When I started having issues with my son’s school my obvious starting point to make sense of it all was law, so I took to Google.

I don’t know how many people who may read this have also read a piece of law, but I think for most of us, it’s like trying to read a bowl of alphabet spaghetti. If anyone without legal training intends to attempt such a thing, I would suggest they do the IPSEA modules instead sooooo much easier! http://www.ipsea.org.uk/contact/training/online-training There’s a definite knack to it and I wish this training was available back in 2007 when I was trying to make sense of it all.

Like many parents who have a child with additional needs, I was not supported by either the school or the LA. I tried to have conversations but the fell on deaf ears. The final straw was the SEN Governor trying to bully me in to removing my son from the school roll – ‘we’ll take you to court for his truancy’ – to hell you will! I so hate bullies. But was what they were doing disability discrimination or something else? What actually is disability discrimination? To answer that, you first have to answer, what is disability?

The Equality Act 2010 now underpins laws which revolve around SEND, just read Fulfilling and Rewarding Lives (the statutory guidance to the Autism Act 2009) and the language is clear – you should already be doing this under your EQA duties so there will be no additional funding. The SENCoP wording, the new DSA (Disabled Students Allowance) guidance and others are all reinforcing the EQA (see http://www.equalityhumanrights.com/ for more info).

To be disabled, you need to have a condition that has a substantial effect on day-to-day living (i.e. not trivial) that is long-term (12mths +) and is likely to continue beyond a year. That does not mean ‘simply has a diagnosis of’, as many people with diagnoses are not substantially affected. All conditions vary in their severity, as people vary in their abilities to live with their conditions.

At the time when I made a DDA (as it was then) claim to SENDIST, my son easily fitted the ‘substantial day-to-day impact’, he was also born with his condition and it is life-long. Proving disability was relatively simple at that time. Some 7+ years on, things have changed. Not his condition, but the way in which he manages it. It would be far more difficult to prove disability now, as the condition no longer affects him substantially. He does remain disabled under the Act though, because he also has Type 1 diabetes. This is substantial as he cannot survive without insulin, a rapid type taken with each meal and a slow acting daily (he splits his to am/pm) one.

Some years ago I went to a conference and happened to end up seated next to Wendy Lawson (http://mugsy.org/wendy/) who was also a speaker. Her speech was full of amusing anecdotes and she’s also clearly one smart lady, with a clutch of high-level qualifications. Is she disabled by her autism? As confident as she was giving her speech, she was completely lost as to where to go when coming out of the ladies loo! It’s those little things that can add up to ‘substantial’, not the fact that she can do speech tours. Can you take a bus/train? Can you use a cinema/supermarket/DIY store? Can you work the washing machine/prepare a meal? These are the types of things that are ‘day-to-day living’ and build up a picture of substantial – not a diagnosis.

Only after establishing disability can you consider ‘discrimination’. My son’s school was a ‘bad’ school where most children got a crap education by crap teachers. Some teachers were better, even good, so less students were affected – but it would be hard to argue disability discrimination for the quality of education given. Everyone was treated equally badly, that’s not discrimination, it’s incompetence. Discrimination is things like less favourable treatment or blanket policies which disproportionally affect those with disabilities. I picked out 4 events where no ‘reasonable adjustments’ were offered and I must stress, I only took action as the relationship between us and school was irreparable. We’d already gone past the point of no return. If you’re not at that point, I seriously suggest continued dialogue, perhaps with a mediator. You have 6mths in which to bring a claim, it shouldn’t be a knee-jerk response as you may lose & have to repair bridges, which is just going to add to the stress.

I was green, naïve. All I did was write a letter, the school hanged themselves. I do not advocate such action! You need proof, and back that proof up with more proof! It makes appeals even harder, as if they aren’t hard enough as it is.

Dyslexia and similar are always going to fall into a grey area, as substantial is not quantified beyond ‘not trivial’. If a parent pays out for private tuition, it is unlikely that the level of difficulty will remain substantial. A perverseness where a parent ends up paying when the LA should provide, then shoots themselves in the foot for doing so. However, while the law does not quantify substantial, the exams body JCQ does. Just one assessment standardised score of 84 or less equates to ‘substantial’, entitling the student to 25% extra time. Additionally, if a student normally word-processes and uses spell-check, then they can do so in an exam (but wouldn’t be allowed any extra marks for spelling in an English exam).

I don’t think it would be difficult to argue that an assessment for exam access arrangements should be carried out on the grounds of ‘reasonable adjustment’. What has been cropping up recently at work though is whether I should assess students moving on to other establishments. I cannot see any ‘reasonable adjustment’ duty there, after all, would you expect a current employer to assess you because you’ve handed in your notice and you want a report for your next boss? I don’t think so! The duty is on the new establishment.

Schools, colleges and universities now not only have to provide reasonable adjustments, they also have to provide aids and adaptations unless provided under a statement or EHCP. This does not mean building a new disabled toilet, or moving all the science labs & food tech equipment to the ground floor. The adjustment must be reasonable and building work beyond a simple ramp or similar is not. If a child with an ASD cannot cope with surround sound, then the trip to a cinema could be either changed at whole-class level, if it doesn’t disproportionately disadvantage the whole class, or at single or small group level. The duty though is a pro-active one. All trips have to be risk-assessed and if there’s a student with known SEN/D in the class, the impact on this student must be acted upon. However, don’t expect a school to jump to attention if you haven’t brought issues to their attention. They have loads of children to consider, not just yours. If you spot a potential problem, let them know, ask them what they’re thinking about doing. Lend a hand if needs be – but that doesn’t mean your kid can’t go if you don’t! If your child is a handful, why can’t another parent go & the teacher have your child in his/her group? Anyway, I would warn all teachers about saying a child can’t go unless the parent does, as you’ve just opened the door for a parent to see what a crap teacher you are. After all, if you were a good, inclusive teacher, you’d never have tried to bar that child in the first place, would you? You will be unwittingly putting all your flaws on show, warts ‘n’ all…….

N.B. these are my musings, not some kind of definitive legal advice!


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