The Equality Act and your child’s education
Knowing what your legal rights are can help make sure that your child gets the support they need in their education.
Sometimes just showing that you're aware of your legal rights can mean that the education setting will take your concerns more seriously.
It’s usually easier to try and prevent problems rather than having to fix something once it’s gone wrong. For more information on working successfully with your child’s school or college see:
The Equality Act 2010 is an important law that protects deaf children and young people from being discriminated against.
If your child lives in England, Scotland or Wales, they will be protected by the Equality Act. If you live in Northern Ireland your child is protected by the Disability Discrimination Act 2005.
To find out more information on disability legislation in Northern Ireland, visit the Equality Commission for Northern Ireland website.
The Equality Act is particularly helpful in education settings in situations such as when:
- a nursery or school has refused to admit your child for a reason related to their deafness
- your child’s school has refused to include them in an outing for a reason related to their deafness
- your child has been excluded from school, or punished in some way, for a reason that you believe is connected to their deafness
- you believe that your child’s nursery, school or college isn’t deaf aware
- your child’s deafness makes it harder for them to do well and they need more support
- your child needs radio aids or other equipment to help take part in lessons or lectures, but they don’t have an Education, Health and Care (EHC) plan (England), statement of special educational needs (Wales) or a coordinated support plan (Scotland)
- your child needs special arrangements so that they can sit exams or tests
- your child is about to start or transfer to another school and you want to work with the new school to make sure they’ve planned ahead so that your child has a smooth start
- your child is about to start studying at a further education college or university and you want to make sure that they get the right support.
All public bodies and services must follow the Equality Act, including local authorities and all education providers such as nurseries, schools (including private and independent schools), colleges, training providers and universities.
To be protected by the Equality Act, your child needs to meet the legal definition of disability.
This is when a person has “a physical or mental impairment which has a substantial and long term adverse effect on that person’s ability to carry out normal day-to-day activities.”
In this instance, ‘long term’ is defined as lasting, or likely to last, for at least 12 months.
All permanently deaf children will meet the definition of disability.
However, children who experience temporary deafness (for example, due to glue ear), will only be considered disabled under the Equality Act if the temporary deafness has lasted or is likely to last more than 12 months.
Under the Equality Act, the following behaviors are unlawful.
This is when a provider treats a child or young person less favourably because of their deafness (or other disability).
Example: a school refusing to admit a child because they’re deaf.
It’s also direct discrimination when a disabled person is placed at a substantial disadvantage because reasonable adjustments haven’t been made.
Example: a teacher asking students to make notes while they speak. A deaf child would be at a substantial disadvantage because it’s impossible to lip-read the teacher while looking down to make notes.
This is when a provider does something which applies to all children and young people, but is more likely to have an impact on those with disabilities.
Example: a school rewarding those who have a 100% attendance record with a trip to a theme park, without taking into account instances where pupils have had to miss lessons because of their disability (for example, to attend audiology appointments).
Discrimination arising from disability
This is when a provider treats a child or young person less favourably because of something connected to their disability rather than the disability itself.
Example: a school deciding that children with short attention spans (including deaf children who can sometimes find it harder to pay attention for long periods of time) won’t be allowed to watch a performance by a visiting theatre company.
This is when a provider does something which makes a disabled child or young person feel ‘picked on’, intimidated or humiliated because of their deafness.
Example: a teacher ridiculing a deaf child in class because the child didn’t hear their name being called.
This is when a person is treated less favourably because they, their parent or sibling have done a ‘protected act’. Protected acts include making a claim or complaint of discrimination.
Example: a parent writes a letter of complaint, saying that the school isn’t fulfilling its duties towards their deaf child because no deaf awareness training has been given. As a result, the deaf child’s non-disabled younger sister is refused a place at the school.
The Equality Act protects your child in two main ways:
- It entitles your child to reasonable adjustments.
- It means education providers need to plan ahead and think about how they can remove any barriers that might disadvantage deaf or disabled children and young people.
What is a reasonable adjustment?
A reasonable adjustment is a change a provider makes so that a deaf child can do something which they wouldn’t otherwise be able to do.
If an education provider refuses or fails to make reasonable adjustments, then this can be seen as discrimination.
More information on reasonable adjustments can be found in the Equality and Human Rights Commission’s publication Reasonable Adjustments for Disabled Pupils.
The law doesn’t say exactly what a reasonable adjustment would be. This is because what’s ‘reasonable’ may depend on the situation.
Factors that should be taken into account include:
- how much it would cost to make the adjustment
- how practical it would be to make the adjustment
- the difference it would make to the disabled child or young person
- how much funding the provider has to make the adjustment.
For example, it may be reasonable to expect a large secondary school to introduce soundfield systems, but for a village primary school with only 50 pupils and a small budget, the cost might be considered unreasonably high and impractical.
If something can be done easily, quickly or inexpensively, then it should be seen as a reasonable adjustment.
Examples of reasonable adjustments include:
- teachers being asked to make sure that they face your child when speaking so that your child can lip-read
- teachers agreeing to support their lessons with visual aids
- basic deaf awareness training being organised for all staff at the secondary school your child will attend
- homework tasks being printed out in advance of the lesson, so that your child doesn’t have to listen and write at the same time
- a school agreeing to install a soundfield system in your child’s classroom
- your child being given extra time to complete an exam, because they take longer to process what they read
- a college or university providing a note-taker to help your child.
No charge should be made to parents or a young person for any reasonable adjustment.
Auxiliary aids and services
Under the Equality Act, education settings and local authorities must also provide ‘auxiliary aids’ as a reasonable adjustment to help disabled people overcome any disadvantage they may experience because of their disability.
The term auxiliary aid covers both aids and services and could include:
- radio aids
- soundfield systems
- assistance to make sure that hearing aids are working correctly
- a note-taker to provide written notes
- a communication support worker, sign language interpreter or lip-speaker
- a British Sign Language (BSL) interpreter for deaf parents to attend parents’ evening.
What if a reasonable adjustment can’t be made?
In some cases, it’s not possible for an education setting to make a reasonable adjustment because it would be too expensive or difficult to do so.
In these cases, the law says that the local authority may need to provide additional support beyond what the education setting can provide.
For example, if it’s too expensive for a nursery, school or college to provide your child with a radio aid, the local authority should consider if they could provide this themselves as a reasonable adjustment.
Local authorities will have much larger budgets so the cost of a radio aid may be more reasonable at this level. For this reason, in many areas, radio aids are normally provided by the local authority to be used in different education settings and within the home.
In other cases, the fact that an education setting can’t make reasonable adjustments may mean that your child meets the threshold for an Education, Health and Care (EHC) plan (England), a statement of special educational needs (Wales) or a coordinated support plan (Scotland).
These are legal documents that set out the support that your child needs. They are usually given to a child where they need more support that a nursery, school or college can reasonably provide. They are not available to young people in higher education.
The Public Sector Equality Duty
Under the Equality Act, all public bodies must follow the Public Sector Equality Duty (PSED).
This requires all public bodies, including stated-funded schools, colleges and universities, and local authorities to have due regard for the need to:
- eliminate discrimination and other conduct that is prohibited by the Act
- advance equality of opportunity between people who share a ‘protected characteristic’ and people who don’t share it. A protected characteristic includes: sex, race, disability, religion or belief and sexual orientation
- foster good relations between people who share a protected characteristic and people who don’t, for example, between disabled people and non-disabled people.
The PSED is an ‘anticipatory duty’. This means that all public bodies must plan ahead and think about how they can remove any barriers that might disadvantage deaf or other disabled children and young people.
This also means that whenever significant decisions are being made or policies developed, schools must consider carefully the impact they will have on equality. For example, when planning an extra-curricular activity, schools must consider whether the activities are accessible for disabled children and young people.
Schools and colleges are also required to publish equality objectives to show how they are meeting the PSED. These objectives should be updated at least once a year and new objectives should be published at least every four years.
An example of an equality objective for a school might be to reduce hostile attitudes and behaviour towards, and between, disabled and non-disabled pupils.
Many schools and colleges publish their objectives on their website.
Accessibility planning for disabled pupils
Schools are required to carry out accessibility planning for disabled pupils. They must write, implement and review accessibility plans which are aimed at:
- increasing the extent to which disabled pupils can participate in the curriculum
- improving the physical environment of schools so that pupils can take better advantage of education, benefits, facilities and services provided
- improving the availability of accessible information to disabled pupils.
The accessibility plan may be a separate document or may be published as part of another document such as the school development plan. It should be available on the school website, or you can ask the school for a copy.
Accessibility plans should be reviewed and republished every three years.
Whoever is responsible for delivering the educational part of an apprenticeship (this could be a further education college, private training provider or the employer themselves) has the same duty as other education providers to make reasonable adjustments and avoid/prevent discrimination.
Funding is available through Disabled Students' Allowances (DSAs) for support which can’t be met as reasonable adjustments by the university or other higher education provider.
Students should apply for DSAs at the same time as filling in their student finance applications – they should do this as early as possible to guarantee support will be in place when they start their course.
In England, DSAs aren't available for support that the Government expects universities to fund as reasonable adjustments. This includes manual note-takers, proofreaders and alert systems for accommodation.
Access arrangements for exams
Education providers and general qualifications bodies both have a duty to make reasonable adjustments to make sure deaf children and young people aren’t unfairly disadvantaged when sitting exams or assessments which lead to a qualification.
For more information see Access arrangements for your child's examinations.
If you think that an education setting is refusing or failing to make reasonable adjustments, then this may mean your child is being discriminated against.
Before deciding what action to take, check that the problem really is discrimination. You can do this by answering the following questions:
- Did the education provider know that your child was deaf?
For some types of discrimination to apply, the provider must know about the disability. This doesn’t mean that you need to formally tell the provider that your child is deaf, particularly if it’s obvious because, for example, your child wears a hearing aid.
However, if your child’s hearing loss is less obvious or if you aren’t sure if the provider is aware, it’s better to let them know and make sure that a formal record is kept so that there’s no doubt that the provider is aware.
- Has your child been put at a substantial disadvantage or been treated less favourably?
- Is this disadvantage or less favourable treatment related to your child’s deafness (or other disability)?
- Could the provider have made reasonable adjustments to avoid the disadvantage?
- Could the provider justify the less favourable treatment, for example, on the grounds of health and safety?
Providers might use a ‘justification defence’. This means that they may acknowledge that your child has been discriminated against but that there was nothing they could do about it. The provider will only be able to rely on this defence if it can demonstrate that it has considered all reasonable adjustments.
Example 1: A school decides not to take a pupil on a trip to the local swimming pool as the school’s risk assessment policy requires children to be able to hear verbal commands whilst in the pool in case of an emergency.
This is an example of indirect discrimination as it’s a policy which is preventing the deaf child from swimming. The school may argue that it’s simply trying to keep the children safe. However, if a reasonable adjustment could be made (such as a communication support worker entering the pool with the child) then the school is unlikely to be able to rely on this defence.
Example 2: A school decides not to allow a child who is deaf and has complex needs to join in a school trip to London. This is because he often acts impulsively and has run away from the school and staff on previous school trips.
This is an example of discrimination arising from a disability, as the school is not saying that he can’t go on the trip due to his disability but because of something connected to his disability. The school may again argue that it wants to keep the child safe. If the school can demonstrate that it has undertaken a full risk assessment and has exhausted the reasonable adjustments which can be made, this decision may be justified.
Please note that the justification defence is not available for claims of direct discrimination, failure to make reasonable adjustments, harassment or victimisation.
Making a claim against a school
In most cases, you should be able to work with your child’s school to resolve problems. Find out more about making a complaint about your child's school.
However, if you need to take matters further, you have the right to appeal or make a claim to a specialist independent Tribunal.
There are different Tribunals for England, Scotland and Wales.
Claims must be made within six months of the date of the incident.
In England, claims against schools should be made to the First-tier Tribunal Special Educational Needs and Disability.
The Tribunal publishes a guide to bringing a disability discrimination case which gives more details about what issues the Tribunal will and won’t deal with (for example it doesn’t deal with school admissions or some exclusions). Our factsheet, How to appeal to the Tribunal against a decision about your child’s special educational needs (England), gives more information.
In Scotland you should approach your local authority education department. If you can’t resolve the problem with the education department you can raise a claim at the First tier Tribunal for Scotland (Education and Health Chamber).
In Wales, you can appeal to the Special Educational Needs Tribunal for Wales.
Our factsheet, Appealing to the Special Educational Needs tribunal in Wales, gives more information.
What can I expect at a Tribunal?
There’s no charge for lodging a disability discrimination appeal or claim with the Tribunal service and you don’t have to have legal representation for a Tribunal appeal, although you can if you wish to.
In England and Wales, although the Tribunal hearing is still a legal hearing, it’s conducted in a less formal way than some other court proceedings.
For example you and your representative and witnesses (if applicable), and the provider and their representative and witnesses (if applicable) will all sit at one side of a table in the same room throughout the hearing, with the members of the Tribunal sitting opposite.
Tribunals usually take place in a room inside a court building where people will meet around a table. They may occasionally, although not usually, take place in a typical courtroom.
The chair of the Tribunal is legally qualified, while the lay members (non lawyers) will have significant knowledge and experience of special educational needs and disability. The Tribunal members will aim to run proceedings in a friendly way and make things as unintimidating as possible.
In Scotland, a Tribunal hearing may seem more formal (for example, witnesses are called one by one and don’t stay in the room to hear other witnesses’ evidence) but the Tribunal members still aim to conduct hearings in a way that is accessible to families.
The Tribunals can’t order the payment of compensation, but they may make any order that they think appropriate, often with the intention of trying to remedy the damage done and to reduce any further disadvantage. For example, tribunals could order:
- a letter of apology
- staff training
- changes to policies and procedures
- additional education for a pupil who has missed education
- an additional school trip for a pupil who has missed a trip.
If you need extra support, you can also contact our Freephone Helpline. We have a team of education appeals advisers who may be able to support you in making a claim against a school or local authority.
Making a claim against other providers
The Tribunal can only hear disability discrimination claims in relation to schools. All other discrimination (for example in nurseries, colleges, universities and training providers) must be challenged in the County Court (England and Wales) or Sheriff Court (Scotland).
Unlike the Tribunal, the County Court or Sheriff Court can order the payment of compensation. This is known as an award for injury to feelings. It can also order other remedies including:
- making a declaration that your child has been unlawfully discriminated against, harassed or victimised, or declare that no unlawful discrimination, harassment or victimisation has taken place
- imposing an injunction (known in Scotland as an interdict) requiring the local authority to do something to prevent them from repeating any discriminatory act in the future.
If you’re lodging a claim in the County Court in England or Wales, or Sheriff Court in Scotland, you’ll have to pay a fee for lodging your claim form. The fee will depend on the amount of money you’re claiming for damages.
There may also be other costs connected to lodging a claim in the County Court or Sheriff Court. These can include:
- the cost of your legal representatives. This may not apply if you’re eligible for legal aid, or if you win your case, the opposing party may be ordered to pay your legal costs.
- the legal costs of the opposing party if you lose your case.
We have created some template letters to help you use the Equality Act to:
- challenge a permanent exclusion (England and Wales)
- request reasonable adjustments
- challenge a failure to make reasonable adjustments
- complain about failure to make reasonable adjustments
- complain about less favourable treatment (disability discrimination)
- notify of your intention to make a claim to the Tribunal about less favourable treatment (disability discrimination)
Please copy and paste the content of these template letters and then edit them as appropriate to your situation.
We have created some scenarios to show how the Equality Act might be relevant in a range of different circumstances.
Although the Equality Act only applies in England, Scotland and Wales, these scenarios may still be helpful to parents in Northern Ireland as there are some similarities between the Equality Act and Northern Ireland’s Disability Discrimination Act 2005.