Disability - With reference to a topic of your choice, assess the effect of the disability discrimination legislation in the UK since 1995.

The schools or in many cases what is referred to as a responsible body another name for governing bodies should not be prejudice in the acceptance procedure for children or make it difficult for disabled pupils to gain entry to the school. Part 1 of the Act deals exclusively with SEN (Special Educational Needs). New laws on educating pupils with disabilities have serious implications for governing bodies.“Section 1 of the Act replaces the existing duty s 316 of the Education Act 1996 with a new section imposing a mandatory duty to educate children with SEN in mainstream schools subject to certain exceptions. The governments aim is to strengthen the right to a mainstream place for children with SEN and to enable greater inclusion and safeguard the efficient education of all pupils’”. SEN Consortium, an umbrella group of organisations, has highlighted the link between special needs and exclusions to the committee. It argues that schools are sometimes reluctant to make reasonable adjustments to their policies to accommodate SEN children, and this may have contributed to their exclusions.The provisions at this stage should give rise to a duty of inclusiveness in all aspects of the schooling of the child concerned, however in the a case of Buniak -v- Jenny Hammond Primary Schoolsupported by the DRC, a young boy who had learning difficulties and developmental delay had been excluded from numerous school activities including the Christmas play, assemblies, school trips because the school believed he would not benefit from these activities and would disrupt other children. This was a case concerning a mainstream school. Rupert, a 6 year old was excluded from his school because he had diabetes, his mum was told he was not to return when she picked him up one day; the school already had all his things packed and ready. Rupert’s parents have won the right to an apology and a reimbursement of the school fees. Within the provisions of the Act, Part 4 allows justification in the face of temporary exclusions from particular activities on the basis of behavioural difficulties and the like, however this seems to have given the impression that blanket bans from particular activities for good, are acceptable. Clearly if such action were allowed we would be in an even more desperate state than what we are. In fact there have been cases were a pupil is excluded from attaining their education as a result of the discrimination suffered, a child at a mainstream school was told he must wear a bright coloured jumper with a fluorescent disc so that the teachers could keep an eye on him. ‘This case is a clear example of less favourable treatment of a disabled child where the school have tried to rely on health an safety grounds but have carried out no risk assessment. There is also a complete failure to make reasonable adjustments, which has resulted in the pupil being unable to access education.  As a consequence of the school’s actions this pupil has missed a year of education.’ The outcome of the case was that the treatment of this boy was surely less favourable, it was related to his disability and the school had failed to make any reasonable adjustments.

This legislation is intended to prevent such incidents. The Disability Rights Commission shows that the number of cases that have been taken up has since the enactment of these provisions has risen. Under the Act the responsibility of complying with these duties as far as schools are concerned in the field of education is the responsible bodies, the amending Act states before numerous provisions, “It is unlawful for the body responsible for a school to discriminate against a disabled pupil in the education or associated services provided for, or offered to, pupils at the school by that body.” The Act however goes on to provide the defence of numerous justifications on the discrimination that may be caused in any of the aforementioned areas, in fact the provisions in this section go as far as to include that ignorance may be a defence to the discrimination that is inflicted on the children with disabilities, “in relation to a failure to take a particular step, a responsible body does not discriminate against a person if it shows-that that, at the time in question, it did not know and could not reasonably have been expected to know, that he was disabled and; that its failure to take the step was attributable to that lack of knowledge.” Interestingly findings show that disabled children have better access to Welsh schools and better standards of teaching than any other parts of the UK, according to a leading rights commission. Within the Act discrimination takes place when a responsible body “for a reason which relates to his disability, treats him less favourably than it treats or would treat others to whom that reason does not or would not apply;” referring to a pupil or prospective student of the school that the governing body is governing. Furthermore this applies if the treatment cannot be justified under the same section. It is suggested that in deciding the discrimination case the court or tribunal hearing should ask itself four questions; “what is the treatment complained of? What is the reason of the treatment? Did that reason relate to the applicant/claimants disability? And if so, would the defendant/respondent have treated in the same an applicant/ claimant to whom that reason did not apply?” The criteria for less favourable treatment as discussed in Lindens article is of course subject to the already discussed ironic defence of ignorance. There are times that the schools in question are ignorant to the effect of a particular disability, a case concerning a thirteen year who has Tourette’s Syndrome and co-morbid ADHD, the boy attended a mainstream school which excluded him and punished him on several occasions for behaviour related to his disability.  In addition the school failed to make reasonable adjustments and also excluded him from a school trip. The DRC wrote on this case stating that “this Part 4 case appears to disclose an example of a mainstream school failing to recognise the consequences of cognitive impairment and so treating as disciplinary matters incidents that should elicit a more informed response. As such, this case goes to the heart of how Part 4 should be applied in practice in a mainstream setting.” The pupil was included back into the school with an apology from the school and redeemed all the activities including school trips.

It is possible that an institution is found to have discriminated against a pupil or prospective pupil if they fail to make reasonable adjustments and due to this the pupil is at a ‘substantial disadvantage. For example if “a pupil with severe dyslexia is told she cannot have her teacher’s lesson notes, and that she should be taking notes during lessons “like everyone else”. Unlike the justification discussed for less favourable treatment, the failure to take reasonable steps can only be excused if to avoid putting pupils at substantial disadvantage, it can only be justified if there is a reason which is both material and substantial to the particular case. However the Act does not provide a definition for reasonableness, thus this shall be decided upon by the courts or tribunals. So the question would arise when must schools comply, the idea is that they are not to wait until faced with the problem, as Lord Davies of Oldham, in the debates on the 2001 Bill suggested “a school cannot, in general, wait until a disabled pupil …arrives before making an adjustment …(Schools will) …have to anticipate and plan ahead. They will need to review their policies, practises and procedure …as a matter of course to ensure that they do not discriminate.” A spokesperson said: "Schools have known since July 2002, when the Disability Rights Commission guidance was issued, that they needed to anticipate the needs of disabled learners and not simply respond to those needs as they happened. Many suggested for immediate action, including the press, "Now is the time to prepare. Getting your systems in place now will cost far less than compliance after the fact." Some of the central issues included into the discrimination legislation through the Special Educational Needs Education and Disability Act 2001 has been firstly to highlight the duties of LEA’s to general oversee procedures and communicate effectively through the correct channels any problems encountered, this as well as other provisions relating to SEN are found in part 1 of the Act whereas Part 2 concerns itself primarily with disability discrimination in education. The chapter encompasses the laws in relation to fixed term exclusions or provision of ‘education or associated services’ to be made to the SENDIST. There will always be a fine balance between the hopes and aspirations of the parent, the reality of the child's ability and the rights and education of other children.

Furthermore Chapter 2 of Part 2 of the SENDA gives similar rights to the ones discussed above, however tailored to the needs of pupils in further and higher education in a similar fashion these provisions make it unlawful to discriminate against disabled students and prospective students, the phrase ‘associated services’ is in this case replaced with ‘student services’. There are thought to be around 50,000 disabled students in higher education. There is a wide gap between the most and least effective colleges in the way they support students with the greatest needs. And the most effective colleges tend to be those with more such students. A notable difference between the post 16 rules and the schools provisions is related to the remedies available, although successful claims before the SENDIST are in a position to receive a statement of discrimination and an order for an apology, in the case discussed above where the student suffered discrimination, was told to wear a bright coloured jumper and was excluded from education for a whole year an apology from the school so concerned just does not seem adequate. Post 16 claims are taken to the county court, at this level the courts have the authority to make any order within its power as well as the options SENDIST has in the case of schools. In the case of post 16s it is possible to receive financial compensation, Alison Gordon (not her real name) has a severe visual impairment and has just completed a two-year course at a university in the south of England, she received a "final settlement" of pounds 1,000 from her university for injury to her feelings, after it failed to meet her needs. Gordon regularly had to stand up and tell the lecturer she couldn't see. "They knew what my requirements were - they were incapable of copying the material in advance."’ 

As seen from the earlier discussions the 1995 Act although successful in the inclusion of service provision and employment under anti discriminatory law, it did not incorporate any measure to prevent discrimination against disabled people in the area of education. It was in the 2001 Act that has formed much of the above discussion that came into effect to include education in the list of areas covered. However a large proportion of the duties owed by post 16 education providers shall undergo major effective changes that have already been set up; these shall take effect from September 2006. The changes are as a result of the Disability Discrimination Act 1995 (Amendment) (Further and Higher Education) Regulations 2006 which implement the European Employment Framework Directive (2000/78/EC) in respect of vocational training in the further and higher education sector. The Disability Rights Commission is in the process of revising the existing Code to reflect these changes which will come into effect in September 2006. As far as the new changes are concerned there seems to have been a shift in approach, hence a new direct discrimination duty is applicable as oppose to the pre amendment indirect duty in the earlier provisions. Although the duty to make reasonable adjustments applies only where the institute knew of the necessary arrangements, the Government has issued guidance on the reasonable action an education provider should take to find out about people’s disabilities. The amendments have included a new harassment duty, although this was incorporated into the old law their was no separate provision, the new regulation will include a separate provision on harassment, There has been a reversal of burden of proof and the laws have branched out to include a new duty prohibiting discriminatory advertisements also discrimination whilst marketing their courses. Another one of the new duties under the amended act is prohibiting instructions or pressure to discriminate whether directly or indirectly.

It is common practise that once having left university, there is a time span during which the pupil and the university share a strong link and the university continues to serve its duty towards the pupil. At the very least almost all graduates use the university as a reference, in addition there are now new specific duties that apply after the relationship between the student and education provider has ended. Under the new regulation it is also unlawful to victimise a person (whether or not he is disabled) after the relationship has come to an end, the example in the draft code is if a disabled person gives the name of his university supervisor as a referee for a new job. The supervisor gives him a poor reference, referring to his disability as being a hindrance. This poor reference is an untrue reflection of the standard of work that the student produced whilst at university. The poor reference was given because he brought a claim of disability discrimination against the university. Consequently, this is likely to be unlawful. There are now new specific provisions in relation to qualifications that apply under the amendments from September 2006, so that a student with disabilities does not loose out in conferring the qualifications etc. The Act says that a competence standard is an academic, medical, or other standard applied by or on behalf of an education provider for the purpose of determining whether or not a person has a particular level of competence or ability. In applying this, universities can help themselves to carry out their duties and thus escape claims of discrimination.

At around the same time the 2001 Act was enacted, there were also a number of new sets of regulations and guidance issued, including: a replacement Code of Practise on Special Educational Needs (which came into force from January 2002); new Special Educational Needs Tribunal Regulations 2001(which came into force from September 2001); the Education (Special Education Needs) (England) (Consolidation) Regulations 2001 (which came into force in January 2002); and the Special Educational Needs and Disability Tribunal (General Provisions and Disability Claims Procedure) Regulations 2002 (which came into force in 1 September 2002, but which, to all intents and purposes, mirrored the existing tribunal regulations for SEN appeals.) finally, the Disability Rights Commission (DRC) issued two codes of practise in relation to Disability Discrimination in Schools and in relation to Disability Discrimination in Further and Higher Education in 2002.The most helpful aspect of the provisions in the area of education is that with its enactment we also saw the coming of the DRC ‘in the 10 years that have followed the DDA, it has been supplemented and strengthened with the establishment of a watchdog in the shape of the Disability Rights Commission (DRC) and key new rights around education.’ However although the changes have been many and in fairness effective in many areas, statistics are not good enough ‘even 10 years on from the establishment of the Disability Discrimination Act (DDA) 1995, the figures are stark. Only 50% of disabled people of working age are in employment, compared with 81% of non-disabled people - and they earn 30% less when they are working. Disabled people are twice as likely to have no qualifications and are more likely to live in unsuitable housing than their non-disabled counterparts; and only 36% live in households with internet access, compared to 61% of non-disabled people. The difficulties for disabled people are many and varied, and rooted in "institutional discrimination", often as a result of thoughtlessness and ignorance. Part of the challenge for many disabled people lies in the fact that, unlike sex and race discrimination, prejudice doesn't just extend to attitudes – they have physical barriers to contend with too.  Bert Massie speaks of the difficulties that still exit, “A recent National Audit Office report found that a disabled person aged 18 is less than half as likely to enter higher education as non-disabled 18 year old. The reasons for this are complex and include early disengagement from education, poor educational opportunities prior to higher education, lack of confidence in higher education as a realistic option and difficulties in securing financial support. Partly as a consequence of poor educational opportunities, working-age disabled people are twice as likely to be out of work as non-disabled people.” If the legislation could provide effective protection for this right then other aspects in a person regardless of their disability would become healthier.

The importance of education was highlighted at the beginning of the essay, it is for these reasons that education is so crucial to ones life as well as being such a basic right of any human being, when the path to seeking knowledge and gaining skills to equip oneself for the rest of their life is damaged in one way or another, the danger is that the rest of ones life may suffer consequently. This is a risk that no one should have to take, education should be a comfortable journey that everyone enjoys and learns many lessons essential to living from.  Due to there being “no clear lines of responsibility in Institutions, means students are passed from pillar to post to ensure their most basic requirements are met”, education is just that, a basic essential requirement. The law has come a long way from having excluded education from its disability discrimination legislation to now having several provisions added year after year to the current legislation. Each time their is an amendment more people get hope, there is still a long way to go and some amendments to make, but as a society we should be working to implement every single provision that has already been enacted. The courts and SENDA must continue to give rulings that really will make people stop and make the changes such as in the recent case where a teacher with sight loss receives £196,000 damages.After all some of the facts that have been discussed in the essay relating to incidents that have happened to disabled students, you cant pay off, it is society that disables an individual and no amount of compensation can pay that extent of guilt off.

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