Not all children or young people with special educational needs will be disabled and not all disabled children or young people will have special educational needs, although the vast majority are likely to have both.
A child or young person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities (section 6 of the Equality Act 2010).
“Substantial” means more than minor or trivial and “long term” means lasting more than one year or likely to last more than one year.
Early years settings, schools, colleges and Local Authorities have legal duties to prevent unlawful discrimination. They must ensure that they do not treat children and young people with disabilities less favorably than others.
They also have a duty to make reasonable adjustments – to change what they do or were proposing to do – to ensure a child or a young person is not disadvantaged.
Educational settings must not:
• Refuse to offer a disabled student a place because of their disability
• Treat a disabled student less favorably in any aspect of their education including trips, after school/college clubs and extra-curricular activities
• Exclude a disabled student because of their disability
• Refuse to provide reasonable support to a student with a disability
Discrimination occurs when a place of learning fails to fulfil its obligation to proactively enable a disabled student to fully engage in the educational opportunities and services offered by them.
Types of Discrimination
· Direct discrimination
· Indirect discrimination
· Discrimination arising from a disability
· Harassment
· Victimisation
Direct Discrimination
When the place of learning treats the pupil worse than a non-disabled pupil in a similar situation because of their disability.
Indirect Discrimination
This is when a place of learning puts in place a general requirement such as a policy or rule which puts disabled pupils at a disadvantage compared with others.
Discrimination arising from a disability
Failure to provide a reasonable adjustment for a disabled child.
Harassment
When the pupil is treated in a way that makes them feel humiliated, offended or degraded.
Victimisation
This is when a person is treated badly because they have made a complaint of discrimination under the Equality Act.
If you feel that a child or young person is being treated unfairly due to their disability, it will help to keep communication open with the educational setting.
After having discussions, if you are still not happy, then you can follow the setting’s complaints procedure and make an official complaint, or you can use Dispute Resolution, to try and rectify the situation.
If you still feel that the situation is unresolved you can lodge an appeal with the SEND tribunal.