Disability discrimination—how schools can get it wrong

For this head of claim to be established, it is necessary to demonstrate that:

1. the child is disabled
2. they were treated unfavourably 
3. the reason for the unfavourable treatment arose in consequence of disability

The burden of proof then shifts to the responsible body of the school to advance a defence of objective justification of the treatment, namely that:

d.    the unfavourable treatment was a proportionate means of achieving a legitimate aim

For this head of claim to be established, it is necessary to identify that:

1. the school had a provision, criterion or practice (PCP)
2. disabled pupils or a subgroup of, and a comparator
3. the school’s PCP puts disabled pupils or a subgroup of at a substantial disadvantage compared to their non-disabled comparator
4. reasonable steps the school should have taken as part of its anticipatory duty in relation to this group of disabled pupils to avoid this disadvantage

The burden of proof then shifts to the responsible body to establish that the reasonable steps identified are not reasonable. There is no defence to a reasonable adjustments claim. 

This includes placing on a part-time timetable, detention, isolation or segregation within school, suspension, exclusion - formal and informal, required removal and giving notice of termination of placement, not being allowed on or being sent home from a school trip or other activities.

This includes not making adjustments to the behaviour, uniform or homework policy, not allowing a child to drop GCSE subjects, not differentiating the curriculum, not providing peer mediation support, not allowing a change of house allocation, not providing additional adult support.