Reasonable adjustments and EHCPs - how do they compare?

Data from the Department of Education indicates that the number of students with an Education, Health and Care Plan (EHCP) is rising. 

As a result, schools may be experiencing increased pressure to deliver the support of the EHCP and wonder how this fits with their duty to make reasonable adjustments for students with a disability under the Equality Act 2010. 

Jill Donabie, education partner and Anna Glover, education and charities paralegal, explain what you need to know.

The Equality Act (Act)

The Equality Act 2010 (Act) makes it unlawful to discriminate against, harass or victimise a student with a disability.

The Act applies to all schools, regardless of how they are funded, including mainstream schools, academies and independent schools. 

The responsible body of a school is responsible for ensuring that the duties of the Act are complied with. The responsible body of a maintained school is generally the local authority or the governing body; for an independent school, academy or free school, the responsible body is the proprietor. 

While these duties ultimately sit with the responsible body, school staff will be involved in the day-to-day arrangements. 

What is disability?

A student is deemed “disabled” under the Act if they have a mental and/or physical impairment that has a “substantial” and “long-term” adverse effect on their ability to carry out day-to-day activities. 

“Substantial” means more than merely minor or trivial, while “long-term” means 12 months or more. This is a low threshold for students to reach to meet the definition of disability. 

What is the duty to make reasonable adjustments?

Where a student is considered disabled under the Act, the school has an obligation to make “reasonable adjustments” to ensure that the student is not put at a substantial disadvantage compared with their peers caused by a provision, criterion or practice applied by or on behalf of a school, or by the absence of an auxiliary aid or service. This obligation is also set out in the SEND Code of Practice. 

What is “reasonable”?

What constitutes “reasonable” is not defined in the Act. It is a question of fact to be considered in each individual case. 

The Equality and Human Rights Commission’s Technical Guidance for Schools in England sets out some factors to consider, including: 

·        the resources of the school and the availability of financial or other assistance;

·        the financial and other costs of making the adjustments; 

·        the extent to which taking any particular step would be effective in overcoming the substantial disadvantage suffered by a disabled pupil;

·        the practicability of the adjustments; 

·        the effect of the disability on the individual; and 

·        the need to maintain academic, musical, sporting and other standards. 

You can read the Equality and Human Rights Commission’s guidance in full here.

In short, there is no one “right answer”. Instead, what is “reasonable” is a balancing act of all factors. In carrying out this balancing exercise, it may be appropriate to seek advice from third parties, such as the local authority or SEND support to put the appropriate adjustments in place. It may also be helpful to consult with the pupil’s parents/guardians. 

It is important to note that there is no defence to a failure to make reasonable adjustments. If challenged, the school would have to demonstrate their decision-making and aim to justify why the adjustments were reasonable in all the circumstances. 

For this reason, it is important to keep careful records of the decision-making process. 

What if the student has an Education, Health and Care Plan?

An Education, Health and Care Plan (EHCP) outlines a student’s special educational needs (SEN) and the support required to meet these needs. 

Although they overlap, disability and SEN are not interchangeable. A student without an EHCP or SEN may still fulfil the definition of disability under the Act, while a student with an EHCP/SEN may not. This is only one consideration. 

However, if a student who is considered “disabled” under the Act has an EHCP in place, the school may wonder if delivering the provision in the EHCP is enough to discharge its duty to make reasonable adjustments. 

The Upper Tribunal recently considered this in two cases (SS v Proprietor of an Independent School and KTS v Governing Body of the Community Primary School). 

Both cases make clear that the duty to make reasonable adjustments will only be met by providing the provision set out in an EHCP if the support is such that the student is no longer at a substantial disadvantage at the school. 

The fact that some adjustments have been made in line with the EHCP does not mean that further adjustments are not required. For example, if the EHCP is out of date or unreasonable in some other aspect, the school could be required to go further to ensure that the student is not at a substantial disadvantage. The guidance referred to above echoes that message.

Takeaways

In short, schools may be expected to go further than the provisions of an EHCP. The reasonable adjustments duty is triggered where there is a need to avoid ‘substantial disadvantage’. 

The duty is ‘to take such steps as it is reasonable to have to take to avoid the substantial disadvantage’ to a disabled person caused by a provision, criterion or practice, or by the absence of an auxiliary aid or service. “

It will be a question of considering what is reasonable in all the circumstances considering the needs of the student and the disadvantage suffered. 

In summary, the presence of an EHCP does not reduce the responsible body’s duty to make reasonable adjustments for disabled pupils. 

However, if the provision under the pupil’s EHCP removes any “substantial disadvantage,” the school may not need to provide anything else. 

For more information, please contact Jill using [email protected] or 0191 211 7933.