Since 1 September 2012, schools have had a duty to provide auxiliary aids and services for disabled pupils. How might schools interpret this requirement, asks Suzanne O’Connell?
Since 2002, schools have had a duty to provide reasonable adjustments for disabled people. The extension of its scope to include auxiliary aids and services seems logical, but how far must you go?
The difficulty with much equality legislation lies in the detail. For example, the definition of what is “reasonable” can be particularly problematic. Many reasonable adjustments are inexpensive and perhaps require alterations in the way the school day or timetable is managed. Others, including auxiliary aids and services provision, have the potential to be much more expensive.
The Equality and Human Rights Commission (EHRC) has produced a guide to help schools and education authorities interpret the duty. This article highlights some of the most important pieces of advice it provides.
The reasonable adjustments duty
According to the Equality Act 2010 there are three elements to the reasonable adjustments duty:
provisions, criteria and practices
Schools are already making additional provision in order to meet the requirements — for example, providing coloured layovers for dyslexic pupils or adapting PE equipment. In some cases, provision might already be made because a pupil has learning needs and he or she might even have the support he or she needs identified through a statement.
Provision of auxiliary aids and services
Auxiliary aids and services refer to anything that provides additional support or assistance to a disabled pupil, such as a piece of equipment or support from a member of staff.
For example, an auxiliary aid might be an induction loop or videophone, an adapted keyboard or specialised computer software. An auxiliary service might be the support of a member of staff pushing a wheelchair user, a reader for people with visual impairment or assistance from a sign language interpreter. In order for the duty to kick in, the disabled pupil must be at a substantial disadvantage in comparison with non-disabled pupils.
When is it “reasonable”?
Deciding whether the aid or service is “reasonable” for the school to provide is perhaps the most difficult aspect of the duty. “Reasonable” is not specified and it is only by taking into consideration a number of factors that a decision can be made. The plus side to this is that it means the duty is flexible and has the intention of allowing for the individual circumstances of schools and their pupils. The downside is that it can cause confusion leading to schools unintentionally breaking the law.
The duty is in place to provide the best possible education for disabled pupils. Where a disabled pupil does appear to be at a substantial disadvantage, schools will automatically try to correct the situation through the means that they have. It is when those means are insufficient that they will have to make a decision.
The decision will need to take into account the following.
The extent to which support is provided through the special educational needs framework.
The resources of the school and the availability of financial or other assistance.
The financial and other costs of making the adjustment.
The extent to which taking any particular step would be effective.
The practicability of the adjustment.
The effect of the disability on the individual.
Health and safety requirements.
The need to maintain academic, musical, sporting and other standards.
The interests of other pupils and prospective pupils.
There are many factors to consider in each individual case. Perhaps the first stage of the process where a pupil is evidently encountering difficulties is to consider what is immediately available or what might potentially be available without great additional cost. The redeployment of staff, a timetabling change or an adaptation of a school rule could enable the duty to be met.
There might also be another local school or part of a cluster or a trust that can share a piece of equipment or might have bought one previously and no longer uses it. In some cases, if a pupil has a piece of adapted equipment at home, he or she might be prepared to bring it in to use in school. Some schools might have access to equipment and support through the local authority.
Where a small financial cost is inevitable, then it might be expected that the school would incur it.
The difficulty is deciding when it is unreasonable for that financial cost to be met. It does vary between schools because of size and budget but it is still useful if you can check what other schools in similar situations have spent.
At the same time as you are considering whether it is financially reasonable, you also have to take into account how great the benefit will be. For example, if training staff to provide medical support for a disabled pupil with epilepsy means the difference between the pupil attending the school of his or her choice or not then it would be expected that you would put it in place. However, if an expensive item is likely to make little difference to the outcome then you would not be expected to provide it.
The Act does not override health and safety legislation and, if making an adjustment would increase risk to the health and safety of anybody, then this must be taken into consideration. However, health and safety should not be used as an excuse to avoid making adjustments and the increase in risk should be significant.
The interests of other pupils and prospective pupils is perhaps another factor that can sometimes be misused. There would have to be significant disadvantage for the equipment or service not to be provided. It would also be expected that the school would have looked at various methods of reducing the impact on others to enable the adjustment to take place. In some cases, schools will need to weigh up the benefits and disadvantages to make a decision.
In the end, the decision about whether to provide an auxiliary aid or service depends upon careful consideration, creative thinking and judgment. Every situation is different, and in each case schools should consider the particular factors in comparison to the case studies outlined in the EHRC’s guidance.
Where possible, take advice from specialists, but also talk to other schools about what they have done. If you do decide that it would be unreasonable to make the adjustment, make sure that you have documented the factors you have taken into consideration so that it can be justified to parents. The legislation only confirms what common sense tells us is the right of every child — the best opportunity to receive the best education.
See Reasonable Adjustments for Disabled Pupils — Auxiliary Aids Technical Guidance, EHRC (2012).
Last reviewed 10 December 2012