Discrimination

The ‘responsible body’ is the Local Authority, or Governing body of the School or College your child attends. 

Early years settings, schools, colleges and local authorities (“LAs”) have clear legal duties to act to prevent unlawful discrimination, whether directly or indirectly.

They must ensure that they do not treat children and young people with disabilities ‘less favourably’ than others.

A school’s duty to its pupils goes beyond just the formal education, it provides and covers all school activities such as extra-curricular and leisure.

It does not matter whether a school knew about or approved of those acts. 

The responsible body of a school must not discriminate against a pupil:

• In admissions
• in the way it provides education for the pupil;
• in the way it provides or doesn’t provide a benefit, facility or service;
• by not providing education for the pupil;
• by excluding the pupil from the school;

The law applies to what happens at break and lunch-times as well as to what happens during lessons and covers school related activities such as school clubs, after school clubs, sports activities and school trips.

The responsible body has a duty to make ‘reasonable adjustments’ – to change what they do or were proposing to do – to ensure a disabled child or young person is not disadvantaged.

This includes the provision of ‘aids and services’ to support a child or young person.  Making reasonable adjustments includes providing special aids such as equipment and sign language interpreters.

If a school has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it will be very difficult for them to show objectively that their approach or support was justified.

Template letters

Requesting Reasonable adjustments for your child

The letter can be altered to suit your child’s individual circumstances.  You should add your child’s details and your concerns and send it to the Head Teacher

In all areas of Wales SNAP Cymru has received funding from the Welsh Government to provide information advice and support for families who think their child is being discriminated against in education.  We can help you with the following,

• Preparing for and attending meetings with schools, local authorities and other professionals
• Supporting you to request ‘reasonable adjustments’ for your child
• Helping you to write official letters and complete forms
• Explaining the meaning of official documents, processes or legislation
• Making  referrals or signposting to the correct organisation or contact
• Providing dispute resolution
• Supporting Claims of Discrimination to the Education Tribunal Wales
• Ongoing support if issues are difficult to solve

For advice and support contact us on:

discrimination helpline: 0300 222 5711
email: discrimination@snapcymru.org

It’s often best to try to resolve your problem informally first. It may stop the problem getting worse and avoid the expense and stress of taking formal action.  You should, however, be aware that there are strict time limits for taking  action.  It’s therefore best to act as early as possible if you feel your child is being discriminated against. Talk directly to the Head Teacher and ask for a meeting to discuss your concerns.  SNAP Cymru can help you with this.

Before asking for a meeting with the school it’s useful to think about what’s going wrong and what you want the school to do about it

What you can do to prepare:

1. Make a note of the issues or questions you have
2. Think about what would make it better or make you happier
3. Have information ready about your problem or question.

When meeting with the Head Teacher try to:

• Say exactly what you disagree with – list your concerns or issues
• Describe what has happened and how you or your child is at a substantial disadvantage because of their disability.
• Give the facts as you see them, be specific and clear
•  Share information that may not have been considered
•  Highlight any errors or assumptions that have been used to make the decision
• Explain what reasonable adjustment you think could have been made and how it would help your child with their disability  

Getting help if you are still unhappy with your school

If this doesn’t work you can make a formal complaint using the school’s own complaints procedure. You should explain that you feel your child is being discriminated against, what you believe has taken place, and what action you think the school should take to remedy it.
You can do the following things if your child has experienced discrimination:

• make a complaint
• try mediation or dispute resolution
• bring a claim of discrimination to the First Tier Tribunal /take legal action.

How can I make a complaint if reasonable adjustments aren’t made for my child?

If you make a complaint, this could be the fastest way to get a remedy.  If you believe your child is disabled and requires reasonable adjustments to be made for them, you should ask the school to do this.  You can still meet with the Head Teacher to discuss this.   If reasonable adjustments are not made you could put this in writing using this template

Formal complaint for a failure to make a reasonable adjustment

If you do feel your child has experienced discrimination despite you requesting reasonable adjustments, the first step would be to make a formal complaint using the school’s own complaints procedure.

In your complaint, you should explain what type of disability discrimination you believe has taken place, and what action you think the school should take to remedy it. The complaint should be sent to the Head Teacher and to the Schools Governing Body.  Your school will publish details of its complaint procedure.

If the complaint does not resolve matters, you could choose to bring a claim to the First-tier Tribunal Education Tribunal for Wales (ETW).

However, it is worth considering whether a disability discrimination claim is the best path of action in your individual circumstances.
Discrimination claims are ‘backward looking’, because they focus on a past event of discrimination rather than looking forward to what support is needed. You may prefer to use the ALN framework to access the appropriate support for your child.

If you are still unhappy despite making a complaint to the school and feel your child is being discriminated against, a claim of disability discrimination can be bought against an early years setting, school, college or your local authority.  If the claim against a school was successful, it might be ordered to:

• Arrange training for school staff
• Change school policies or guidance
• Provide extra tuition, to make up for lost learning
• Provide a written apology
• Provide trips or other opportunities to make up for activities the child or young person may have missed
• Make reasonable adjustments to accommodate the pupil’s disability
• Change the location of lessons or activities within the school
• Where a child had been refused entry to an independent school in a manner that was discriminatory, the school could be ordered to admit the child or young person
• If a child was permanently excluded and this was found to be discriminatory, the school could be ordered to re-admit the child or young person.

The following things cannot be ordered:

• Financial compensation
• Physical alterations to school buildings
• The dismissal of a particular staff member

see >The Education Tribunal Wales Guidance  ETW06 – Claim guidance (gov.wales)

A claim of disability discrimination against a school of any type (whether state funded or independent), or against a maintained nursery, can be made to the First-tier Tribunal Educational Tribunal for Wales (ETW). You can find information about discrimination appeals on the tribunal’s website.

A claim against a private nursery, a further education institution or a local authority would need to be brought in the County Court.

You do not need to have a lawyer to go to the Education Tribunal for Wales (ETW) and the vast majority of parents do not have any representative at their appeals.
Help and casework support and advice is available from SNAP Cymru, please contact us on:

• Discrimination helpline 0300 222 5711
• or email: discrimination@snapcymru.org

SNAP advisors can help you communicate with the school to request reasonable adjustments and if this fails to help you prepare an appeal.

If you think your child has experienced discrimination and you want to take action about it, you’ll need to establish the facts of your case.  This will help you decide whether unlawful discrimination has happened and also support your case when you take action.
Thinking about the following things will help you establish the facts of your case:

• is your child disabled under the act?
•  who is the person or organisation who may have discriminated against your child?
•  what exactly happened?
•  when and where did it happen?
•  did anyone see it happen- what evidence is there?
•  what disadvantage or harm did your child suffer? – (without a disadvantage, your discrimination claim would probably not succeed)
•  do you have any specific examples of unfair treatment?
•  why do you think your child was treated unfairly in each of these situations?
•  what impact did this have on your child?

The Education Tribunal Wales can hear claims about disability discrimination by a school under the Equality Act 2010.
The tibunal has produced guidance on bringing a claim of disability discrimination against a school.

Timetable
For claims about disability discrimination against a school, the claim must be received by the Education Tribunal for Wales within six months of the discrimination you are claiming about

Submitting the appeal form
Discrimination Claim forms can be found on the ETW  site.

ETW7 – Claim application form (gov.wales)

You should explain:

Your child’s disability
The discrimination they experienced
what remedy you want
what evidence you have

You will need copies of professional reports or other documents which help explain your child’s disability. If there is a diagnosis of a particular condition, you must provide copies of documents showing this. You should submit this evidence with your claim form.

You should also send a copy of of any documents which might help the  Tribunal to understand what the disability discrimination claim is about. This could include correspondence, copies of documents sent from the school, or written statements from people who witnessed events.

Once the appeal is registered
The registration letter should inform you of the hearing date; or any 
individual case management directions decided by a Tribunal chair (judge) 

they will also send you attendance paperwork to complete and return

The hearing
Disability discrimination claims will be heard by three-member panels.
The school is very likely to be represented by a solicitor or a barrister . 
The panel will not normally make a decision on the day, but will send out a written judgment after the hearing.

SNAP Cymru support can support you throughout this proses 

You can consider using disagreement resolution at any stage – even before entering a formal process. Deciding to mediate can happen alongside a Claim to ETW and does not prevent your right to bring a claim. 

If the dispute is already in the process of mediation the tribunal should be informed and additional time can be granted.  Disagreement resolution (DRS) can be quicker, less stressful and cheaper than going to tribunal or court, and may cause less damage to the relationship between you and the school.

Appropriate provision for your child can be put in place quicker following mediation and more creative or flexible packages of support can be agreed.
The outcome of meditation can often include an apology, an explanation or something that a Tribunal or a court does not have the power to order. Once a settlement has been reached, a mediation agreement can be drawn up.
• You can use DRS Prior to/alongside making an Claim of Discrimination to the ETW Tribunal
• School based issue that cannot be remedied within the school processes
• Concerns regarding discrimination and failure to provide reasonable adjustments

Success is not guaranteed, but the process does have a good chance of success. Even where agreement is not reached, many people find it a very useful process – they learn more about the other party and sometimes they are able to settle the dispute subsequently before going to tribunal.  Using dispute resolution means you decide together on the outcome.   Partial agreements can also be agreed.

To request assistance you can email the legal team at the Equalities and Human Rights Commission Wales
EHRC support Wales
Telephone: 0161 829 8140

Legislation
For the relevant Equality legislation on discrimination in schools see Equality Act 2010, Part 6 (on legislation.gov.uk, external link), Sections 84-89 and 98 and Schedule 10 (accessibility for disabled pupils), 11 (schools, exceptions), 13 (education, reasonable adjustments) and 14 (educational charities and endowments).

Further Education information
For the relevant Equality legislation on discrimination in FE see Equality

Higher Education – Office of the Independent Adjudicator (OIA)
A student can bring a claim of disability discrimination against a university or higher education institution in England or Wales. A student would bring their complaint to the Office of the Independent Adjudicator (OIA) The student will usually have to have exhausted the internal complaints procedure. There are several issues that the OIA cannot hear complaints about, such as questions of academic judgment, but they can hear complaints of discrimination. If a student makes a complaint to the OIA within six months of the alleged discrimination, then the time limit for bringing an action in court is extended by three months.
Further information can be obtained from the OIA website

Education Tribunal Wales 

Education Tribunal for Wales
Welsh Tribunals Unit
PO Box 100
Llandrindod Wells
LD1 9BW

Telephone:   0300 025 9800 
E-mail: 

educationtribunal@gov.wales or 

tribunal.Enquiries@gov.wales

Website: Claims | Education Tribunal (gov.wales)