Here we look at the meaning of the words disability and discrimination and what that can mean for your autistic child.    
 
The information relates to disability discrimination in all types of schools, including those managed by the education authority (EA), independent and grant-aided schools. 

Because we’re talking about legislation we’ll sometimes use ‘disabled’ as a general term that includes autism. Autism is a lifelong condition and therefore considered to be a disability.
 

The meaning of ‘disability’ 

The Disability Discrimination Act 1995 (DDA) describes a disabled person as someone who has: 
 
“a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.” 

This was amended by the Autism Act (Northern Ireland) 2011 which changed the DDA definition of disability so that it includes “taking part in normal social interaction; or forming social relationships”. 
 
You do not have to have a diagnosis to be considered a disabled person.

The impairment must be more than a minor one and have lasted more than 12 months or be likely to last for more than 12 months. 
 
Detailed guidance on the definition of disability is available from the Equality Commission for Northern Ireland. 
 

The Special Educational Needs and Disability (Nl) Order 2005 (SENDO) has made it unlawful for schools to discriminate against pupils for a reason related to their disability. 
 
Every aspect of a pupil’s education and associated services are covered by SENDO, including admissions, suspensions and expulsions. Also included is access to the curriculum, school trips, teaching and learning, sports and school meals.
 

What types of discrimination are there?  

There are two main ways that your child may experience discrimination in school: 

• being treated  ‘less favourably’ than others because of their disability 
• by the school failing to make ‘reasonable adjustments’ to make sure that they are  not placed at a substantial disadvantage in comparison to a non-disabled person  

It may also happen if they are treated  less favourably because they have, or are thought to have, made a complaint about discrimination. This is called victimisation.
 

Less favourable treatment 

A school may be discriminating if it treats a disabled pupil less favourably than another for a reason related to their disability, and the treatment cannot be justified.  
 
Examples of this are if they: 

• have been refused admission to school 
• are excluded from school 
• are not allowed to go on a school trip  

There are three ways to determine whether a child has been treated less favourably. 

• Is the less favourable treatment for a reason that is related to their disability? 
• Is it less favourable treatment than another pupil would get if the above reason did not apply to them? 
• Is it less favourable treatment that cannot be justified? 

If the answer to all these is ‘yes’, then it is likely to be unlawful discrimination.  

Example: 

An autistic pupil is excluded from a school trip because school staff believe they will be unable to take part in the planned activities due to their autism and associated difficulties.   
 
This could be less favourable treatment as: 

• the reason for the treatment was ultimately as a result of the pupil’s disability 
• the exclusion was less favourable than the treatment another pupil who is not autistic would get. 

This exclusion means that the disabled child will miss out on an additional valuable learning experience available to non-disabled pupils in their class.
 

Is less favourable treatment always unlawful? 

Even though a pupil may have been treated less favourably than others, the discrimination won’t be unlawful if it was justified. The school would need to show that there was a particular reason why it treated a disabled child in that way, and that the reasons were significant enough to justify it.   

In the example above, the school may try to justify the less favourable treatment by claiming that it would be too expensive to ensure the child had access to the activities or that a risk assessment showed that the trip could not be managed safely. 

In these cases, any justification must be evidence-based and all reasonable alternatives to include the pupil should be considered.    

Another way that less favourable treatment may be justified is where a school operates a ‘permitted form of selection’ for admission purposes. For example: 

• some grant-aided schools may select pupils based on admission criteria drawn up by the school’s board of governors 
• independent schools may select pupils on grounds of aptitude and ability.
   

Reasonable adjustments 

Failure to make reasonable adjustments so that disabled and non-disabled pupils have equal access in admission arrangements and to education is unlawful. The ‘reasonable adjustments’ duty requires schools to: 

• think ahead 
• anticipate the barriers that disabled pupils may face 
• remove or minimise the barriers before a disabled pupil is placed at a substantial disadvantage.   

Reasonable adjustments may need to be made in admissions and every aspect of school life. So, if an autistic pupil is excluded from a trip it may be because the school hasn’t thought about making reasonable adjustments.  
 
For example, it could have planned a trip or activity that all children could attend or provided additional assistance to enable the disabled pupil to attend and take part.   
 
Again, there are three ways to determine whether ‘reasonable adjustments’ discrimination may apply. 

• Has the school failed to make reasonable adjustments? 
• As a consequence of this, has the disabled pupil been placed at a substantial disadvantage compared with non-disabled pupils? 
• Is it a failure that the school can’t justify? 

If the answer to these questions is ‘yes’, then it is likely to be unlawful discrimination.   
 
For examples and case studies of reasonable adjustments please read the supplement to the code of practice.
 

Exceptions 

SENDO states that in fulfilling their legal duties to make reasonable adjustments under the Act, responsible bodies and the Education Authority (EA) don’t have to: 

• provide auxiliary aids or services 
• alter or remove physical features of the school. 

However, additional duties in relation to disability discrimination were introduced in 2007 and all public authorities, including the EA and Department for Education, have a general duty to promote disability equality. 
 
Ask the EA for copies of its disability action plan and/or equality scheme.
 

Accessibility strategy and plans 

Schools are not required to immediately alter or remove physical features of their premises to accommodate a disabled pupil, but they are required to improve access over time.  
 
The EA must produce a written strategy in relation to this. The boards of governors of grant-aided schools and independent school owners must produce a written plan to show how access to schools will be increased.  
 
Again, ask the EA or your child’s school for copies of their accessibility strategy/plan.
 

Responsible bodies 

The law covering disability discrimination talks about ‘responsible bodies’ that have a legal duty to make sure that pupils or prospective pupils, are not discriminated against. 
 
The responsible body for grant aided schools is the board of governors and the owner is responsible for an independent school.  
 
The board of governors or owner must ensure that everyone in the school is aware of disability rights and how they can avoid discrimination. 

For example:   

• In the classroom, the class teacher is responsible. 
• On a school trip, the responsibility would fall to the member of staff planning the trip.  
• Auxiliary staff have a responsibility at lunch and break times.  
• Teachers with curriculum responsibilities would have responsibility in their particular area of curriculum.  

Ultimately, the principal has responsibility across the whole school.
 

Informing your child’s school of their disability 

Your child’s school needs to know about their disability and the nature of it so they can make specific arrangements. A school can’t be held responsible for treating a pupil less favourably or failing to make reasonable adjustments if they don’t know a pupil is disabled. If a school hasn’t been told about your child’s disability and you make a disability claim against it, the school may be able to defend its actions or inaction.  
 
You can ask the school to keep the existence of your child’s disability confidential, but this may limit the reasonable adjustments it can make.
 

Discrimination in exams 

SENDO also makes it unlawful for general qualification bodies, such as the Council for the Curriculum Examinations and Assessment (CCFEA), to discriminate against disabled pupils taking exams such as GCSEs and ‘A’ Levels.   
 
There is a duty to make reasonable adjustments such as allowing extra time to sit an exam, a reader or a scribe.
 

Disability and special educational needs (SEN) 

If a child needs support with their education that is more or different to what is being generally provided in mainstream schools and nursery, they have SEN.  
 
Some disabled pupils may be disabled and have SEN, others will just have SEN.  
 
The disability discrimination duty is not intended to replace provision that should be made through the SEN framework.  
 
Read about getting extra help in school.
 

What can I do if I think my child has been discriminated against?  

If you think your child has been discriminated against you can:  
 

• ask to meet with the principal to discuss the situation 
• ask to see and then follow the school’s written complaints procedure 
• talk with the ‘responsible body’ (the board of governors or owner of an independent school) 
• contact the Equality Commission  
• make a claim to the Special Educational Needs and Disability Tribunal (SENDIST) within six months 
• appeal to the EA’s expulsions appeal tribunal, setting out any allegations of disability discrimination as part of your appeal if your child has been expelled from a grant-aided school. You must make your appeal within 10 days of the expulsion.
   

Further help from our charity 

For more help with challenging disability discrimination or getting an appropriate education for your child, contact our Education Rights Service.

 

Useful resources

Equality Commission for Northern Ireland Disability Discrimination Code of Practice for Schools and Guide to the Special Educational Needs and Disability Order (NI) 2005