Reasonable adjustments in education settings

This page contains information about education and reasonable adjustments. It covers:
  • Legal frameworks for schools and education authorities
  • Reasonable adjustments
  • Education, Health and Care Plans (EHCP)

Legal frameworks for schools and education authorities

There are many legal frameworks that direct schools in how they must support children and young people (CYP) with Special Educational Needs and Disabilities (SEND). The following information looks at two particular legal frameworks, The Equality Act (2010) and The SEND Code of Practice.

The Equality Act (2010)

The Equality Act (2010) sets out the legal obligations providers have towards disabled children and young people (CYP). Within The Equality Act (2010) disability is defined as

 “a physical or mental impairment which has a long-term and substantial adverse effect on their ability to carry out normal day-to-day activities”

Long term is defined as a year or more and substantial is defined as ‘more than minor or trivial’.

 

The act tells us that providers (which includes educational settings):

– MUST NOT directly or indirectly discriminate, harass or victimise disabled CYP.

– MUST NOT discriminate for a reason arising as a consequence of a CYP disability.

– MUST make reasonable adjustments.

 

Reasonable adjustments

What is the Reasonable Adjustments duty within The Equality Act?

The Reasonable Adjustments 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 provision, criterion or practice applied on or behalf of a school or by the absence of an auxiliary aid or service”.

Whether a disabled pupil is at a significant disadvantage or not will depend on the individual situation. For example, if a pupil has significant difficulties in copying down large amounts of text due to motor difficulties, they would be at a significant disadvantage in a lesson where there was a large demand for note taking. However, they may not be at a substantial disadvantage in a lesson that does not require a lot of written work.

 

The act does not define what is reasonable, this has been done intentionally to allow for flexibility. However, based on tribunal and court hearings we know some of the factors that are likely to be taken into account when considering whether a step is reasonable and they include:

– The resources of the school and the availability of financial or other assistance. For example, it is more likely to be considered reasonable for a school with greater financial resources to make an adjustment that has a significant cost than it would be for a school with fewer resources).

– Financial and other costs of making the adjustment.

– The extent to which taking any particular step would be effective in overcoming the substantial disadvantage.

– The practicability of the adjustment.

– Health and safety requirements. The act does not override Health and Safety legislation. If making a reasonable adjustment risks the health and safety of any person, including the CYP with a disability, then this would not be considered reasonable).

– The interests of other pupils and prospective pupils.

 

It notes in that act that ordinarily the interests of other pupils will not be relevant when considering the reasonable adjustment that are required for a disabled CYP. However, there are limited circumstances in which the provision of particular reasonable adjustments for a disabled CYP will disadvantage other pupils. For example, if the school was planning a five day residential trip, but a CYP needed kidney dialysis, it might not be considered reasonable to cancel the entire trip for all pupils or to expect all pupils to travel to and from a more local activity centre on a daily basis. A reasonable adjustment in this case might be that the CYP receives individual transport to attend during the days which they are able to.

 

Three main areas to consider for reasonable adjustments

Within The Equality Act (2010), there are three main areas that providers must consider in terms of reasonable adjustments.

 

  1. Auxiliary Aids and Services (e.g. a piece of equipment or support from a member of staff).

 

  1. Physical alterations. Most providers must make reasonable adjustments by making physical alterations, but schools are not covered by this duty. However, schools must publish accessibility plans setting out how they plan to increase access for disabled pupils to the curriculum, the physical environment and to information.

 

  1. Provisions, criteria and practices. The terms ‘provisions, criteria and practices’ is not defined in the act, but it is generally understood that this covers the way in which a school operates on a daily basis, including its decision and actions.

 

Here are a few examples of reasonable adjustments that could be made for an autistic young person with a co-occurring eating disorder:
  • Regular decompression breaks built into the school day, where they can engage in activities which help them to feel calm.
  • Uniform adjustments, such as wearing extra clothes or different clothing.
  • A quiet place where they can eat undisturbed.

 

Important points to note about The Equality Act (2010)

There are some important points to note about The Equality Act which include:

  • The Reasonable Adjustment duty is anticipatory. This means that it requires thought to be given in advance to what disabled CYP might require and what adjustments might need to be made to prevent significant disadvantage.
  • It is unlawful for a school to charge a pupil for making a reasonable adjustment in any circumstances, whatever the financial cost to the school and however the school in funded.
  • If a pupil asks for their disability to remain confidential, what is reasonable for the school to do must be consistent with this request for confidentiality. The school still has a duty to make reasonable adjustments, but they may make different adjustments from those that they would have made if there had not been a confidentiality request.

 

The SEND Code of Practice (2014)

A further piece of legislation which is very important for SEND support in schools is the Special Educational Needs and Disability Code of Practice (2014). From September 2014, the SEND Code of Practice was issued which details the legal requirement that MUST be followed without exception, when supporting CYP with SEND from birth to 25. It explains the duties of Local Authorities, health bodies, schools and colleges to provide for those with SEND under Part 3 of the Children and Families Act 2014. Many CYP who have SEN may also have a disability as defined by The Equality Act (2010). However, a CYP may have SEN but not be defined as having a disability under The Equality Act (2010).

 

The definition of SEN

Within the Code of Practice, a CYP is defined as having SEN if they have a learning difficulty or disability which calls for special educational provision to be made for him or her. A CYP of compulsory school age has a learning difficulty or disability if they:

-have a significantly greater difficulty in learning than the majority of others of the same age

Or

-have a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions.

The Graduated Approach

The expectation, as outlined in the Code of Practice, is that all schools will support CYP with SEND using The Graduated Approach.

Using the Graduated Approach, it is expected that most CYP needs will be met within the provision that is ordinarily available within mainstream schools. Schools may seek out additional advice and support from external agencies as part of the graduated approach (e.g. Educational Psychology, Speech and Language). However, if a school has taken relevant and purposeful action to identify, assess and meet the SEN of a CYP and the CYP has not made expected progress or the progress that has been made has only been as a result of much additional support and intervention over and above that which is usually provided, then they may wish to apply for an Education, Health and Care Plan Needs Assessment.

 

Education, Health and Care Plan Needs Assessment (EHCPNA) and Education, Health and Care Plans (EHCP)

An EHCP Needs assessment (EHCPNA) is the process by which the local authority decide whether it is necessary for it to make provision in accordance with an Education Health and Care Plan (EHCP). Before a CYP can have an EHCP, they must have an EHCPNA.

 

Who can request an EHCPNA?

A school, college, or educational setting is most likely to start the process for a child or young person. A parent or carer can ask for an assessment if they think their child is not making progress even with support. A young person can request an assessment for themselves if they are aged 16 to 25.

How do you request an EHCPNA?

Most local authorities now accept requests through an online portal. More information on how to submit a request for an EHCPNA, including what information you will need to include, will be available on your Local Offer page (click here): Local Offer for BOB Staff

SENDIASS Oxfordshire has produced a helpful EHC needs assessment guide (pdf format, 78Kb) for parents.

Who decides whether an EHCPNA is required?

A multi-agency panel, including representatives from health, social care and education, will usually consider the requests for an EHCPNA. They must let you know their decision within six weeks from the date that you submitted your application.

If the local authority decides an EHCPNA is required, you and your child What happens during an EHCPNA?(where appropriate) will be asked to contribute your views, along with a range of professionals, such as your child’s teacher, an Educational Psychologist and any other agencies that may be involved. Once the EHCPNA has been completed, the multi-agency panel will consider all the evidence that has been gathered during the assessment and consider whether an EHCP is required. The local authority must consider whether there is evidence that that despite the education provider having taken relevant and purposeful action to identify, assess and meet the SEN of CYP, the CYP has not made expected progress or the progress made has only been as a result of much additional intervention and support over and above that which is usually provided. They will also consider a range of other information.

The EHC needs assessment may show that the child or young person does not need support through an EHCP. Most children or young people with SEND will not need an EHC plan. If it is decided that your child does not need an EHCP, there is a lot of support available through the local offer.

The local offer includes services provided by:

  • the county council
  • the health services
  • schools
  • groups
  • organisations and charities.

If you do not agree with decision not to undertake an EHCPNA or not to issue an EHCP, then you can appeal this decision formally through the SEND Tribunal

What is an Education, Health and Care Plan?

An Education, Health and Care Plan (EHCP) is a legal document. It sets out the special educational needs of a CYP with SEND and the provisions required to meet those needs. It is a legal document and the local authority is responsible for ensuring that the provisions which are outlined in the document are carried out.

An EHCP will outline the following information for a CYP:

  • what things they need support with
  • what education support they will get to help them to learn
  • what health support they may need
  • what social care support they may need
  • what things they want to do in the future.

This example is the EHC plan used in Oxfordshire (pdf format, 198Kb).

Any funding that is associated with an EHCP is ring fenced for the individual child that is named within the document. An EHCP must be reviewed annually.

 

Getting more help with SEND support

The Special educational needs and disability information advice and support service (SENDIASS) is an information, advice and support service that is available in all local authorities and can help the parent of a child or young person with SEN and disabilities. The service is impartial and confidential. Information on how to contact your local SENDIASS team will be available on The Local Offer page of the local authority of where you live.

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