The Disability Discrimination Act 1995 (DDA) includes Part IV Education. This has been substantially added to by Part 2 of SENDA (Special Educational Needs Disability Act 2001). SENDA applies the Disability Discrimination Act 1995 to education and came into force on the 1st September 2002. Its provisions apply to England, Scotland and Wales and as a result a Tribunal (and a court) has to take into account any relevant provision of the Code of Practice on Special Educational Needs (SEN 2002).

The DDA refers to ‘disabled person’. Reference is made to ‘pupils’. It also covers those who may be admitted to school as pupils so the act also covers ‘prospective pupils’. Prospective pupils would be those who have secured a place in the coming academic year, as opposed to any potential pupil.

The primary duty of schools is as follows:

(i) It is unlawful for the body responsible for a school to discriminate against a disabled person:
    a) in the arrangement it makes for determining admission to the school as a pupil;
    b) in the terms on which it offers to admit him/her to the school as a pupil; or
    c) by refusing or deliberately omitting to accept an application for his/her admission to the school as a pupil.
(ii) 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.
(iii) It is unlawful for the body responsible for a school to discriminate against a disabled pupil by excluding him from the school,
     whether permanently or temporarily.

The possible acts of discrimination are set out in Sections 28B and C:

(i) Not to treat disabled pupils less favourably: Section 28B(1) DDA
(ii) Duty to take reasonable steps to avoid putting disabled pupils at a substantial disadvantage: Section 28C(1) DDA.

Justification
If the less favourable treatment can be justified it is NOT unlawful discrimination (see S28B(2)(b)).

Lack of Knowledge and Confidentiality
The Lack of Knowledge defence is set out in Section 28B(3) and (4) of the DDA.

The ‘confidentiality request’ means a request made by a parent of a disabled child that the existence or nature of his/her disability be treated as confidential.

The role of Case Law: What can we learn from cases?
To date, there are no reported cases concerning disability discrimination in education in the same way that there were in respect of special educational needs. The decisions of Employment Appeal Tribunals (EATs) chaired by a circuit judge and with a High Court judge as President, may be binding, however, on Special Educational Needs and Disability Tribunals (SENDIST), Independent Appeal Panels and Admission Appeal Panels.

Special Educational Needs and Disability Tribunal (SENDIST)
The Annual Report from the President of the Tribunal indicated that 3048 appeals about special education had been received during the year, an 11% increase over the previous year. The report showed two significant trends in appeal numbers:

(i) a 31% increase in appeals against LEA decisions not to undertake an assessment;
(ii) a 22% increase in appeals about children with autistic spectrum disorders.

The proportion of appeals that are resolved without need for a Tribunal hearing continues to increase. Parents withdrew 1416 appeals and under new legislation a further 292 were treated as decided in parents’ favour after LEAs notified SENDIST that thay would take the action sought by parents.

Since the period covered by the President’s report, SENDIST has registered 46% more appeals than in the same period last year. By way of contrast, few parents appear to have taken up new rights to complain about disability discrimination in schools. Since September, only 14 claims have been received.

Inclusion
Because of the policy of inclusion, the delegation of funds to schools at School Action Plus (Code of Practice 2002), the need to reduce the high cost of assessment and statementing, and the professional desire of educational psychologists to be involved in more proactive and preventative work, there may be a reluctance on the part of LEAs to carry out statutory assessments on the grounds that the pupil will receive no more entitlement through a statement.

This postion of LEAs should be challenged as a statement is a legal document which can be enforced while being at School Action or School Action Plus is not.

In order to compel LEAs to carry out a statutory assessment, when they have made a decision not to do so, parents will need to source their own evidence, usually of an educational psychology kind, to support them, if need be, and to influence the LEA in its decision-making. Some parents can and do afford this but many cannot, which means that in many cases they will be unable to promote their child’s interest when there may be a case to do so beyond School Action Plus.

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