What is a disability?
The Equality Act 2010 says that disability is a physical or mental impairment which has a substantial (more than minor or trivial) and long-term adverse effect (to last for at least a year or the rest of their life) on a person’s ability to carry out normal day-to-day activities.
What aspects of Education are covered by the Equality Act?
The Act makes it unlawful to discriminate, harass or victimise a person on grounds of disability in relation to the following areas of school life:
Education and access to any benefit, service and facility
What is disability discrimination?
Disability discrimination occurs when a person receives worse (less favourable or unfavourable) treatment than another person because of a disability. Disability discrimination can also occur when a rule or policy or way of doing things has been put in place which disadvantages a particular group of disabled pupils when compared with non disabled pupils and a disabled person is disadvantaged as a result.
What are the types of Discrimination?
The Equality Act 2010 means that people who have or have had a disability are protected against different types of discrimination.
- direct discrimination;
- indirect discrimination;
- discrimination arising from disability;
- failure to provide a reasonable adjustment for a disabled child;
- harassment; or
When can discrimination be justified?
Even though a pupil may have been treated unfavourably or has been placed at a disadvantage, the discrimination may not be unlawful if the school or Local Authority can show that was justified.
In cases of indirect discrimination and discrimination arising from disability, justified means being able to show that there was lawful and genuine reason for the treatment and that it was a fair, balanced and reasonable response.
What about the duty to make reasonable adjustments?
Schools and Local Authorities must take reasonable steps to make sure that disabled pupils, including children who are not yet at school and in some cases former pupils, are not put at a substantial disadvantage compared with a non-disabled pupil.
A reasonable step, for example, may be amending a policy or changing the way things are done.
Schools do not have to alter buildings. This is because schools and Local Authorities have a duty under the Equality Act 2010 to improve access to buildings over time.
Can a child without a disability be discriminated against?
The Equality Act means that people without a disability are protected against certain types of unlawful conduct, these are:
- Direct discrimination based on association
- Direct discrimination based on perception
- Disability related harassment
- Disability related victimisation
What claims can SENTW deal with?
SENTW deals with all disability related discrimination, harassment and victimisation claims against schools in Wales, except for claims about:
- maintained school admission decisions (these are currently heard by an admission appeal panel), and
- permanent exclusions from maintained schools (these are currently heard by exclusion appeals panels).
How do parents obtain information about their claim?
If someone thinks they may have been discriminated against they can try to obtain information from the School or Local Authority to help them to decide if they have a valid claim or not. If a request for information is made you are not obliged to answer the questions raised, however if you do not do so within 8 weeks of the form being sent or if your answers are considered vague or equivocal then the tribunal panel can take this into account when making its decision.
There is a prescribed form produced by the Government Equalities Office (GEO) that a potential claimant or claimant can use (but they do not have to) if they want to ask questions.
What else can be done to help resolve the dispute?
- The schools complaints procedure
- Local Authority Dispute Resolution Services
None of these procedures will affect a claim to SENTW, they are completely separate processes from making a claim to SENTW. A parent can make a claim and continue with these other forms of dispute resolution if they wish.
Even after a claim has been submitted it is sometimes possible to resolve disputes or to agree certain aspects of the claim by discussing it with the parent. It is helpful if you let the Tribunal know about any agreements that are reached.
Can children make their own claim?
Children and young people can make their own claim against schools in Wales.
Existing parental rights will not be affected by the new rights for children to make their own Disability discrimination claim. A parent can still make a claim whether or not their child makes one.
Is there a time-limit for making a claim?
Claims are made to SENTW. A claim must be made by a parent no later than six months from when the alleged discrimination or last alleged act of discrimination took place. This time-limit may be extended in cases where the Equalities and Human Rights Conciliation Service is used.
Who is the Responsible Body?
Claims are made against the Responsible Body. The Responsible Body is the organisation that is responsible for the school - it is usually the School Governors and / or the Local Authority. Claims cannot be made against an individual person like the head-teacher.
What happens once a claim is registered?
We will notify when you the claim is registered and tell you when you have to send in your case statement and attendance form. You will have 30 working days to submit your case statement and attendance form. We will also write to the parents to give them the same amount of time for sending us their case statement. At the end of the case statement period, we will ensure that you and the parents see each other’s case statement.
We will also arrange a hearing. At the hearing a tribunal panel will consider all the written evidence, as well as anything you, the parents and your respective witnesses have to say. We will aim to issue our decision within approximately 10 working days after the hearing.
The whole process, from when we receive a claim to when we make a decision, usually takes about four to five months. It can sometimes take longer if it is a very complex case.
How do we know if we are the Responsible Body?
The Responsible Body depends on the type of school and the circumstances of each case. In most cases, the Responsible Body will be as set out below, but there can be exceptions.
- Maintained school - School Governors, in general
- Pupil referral unit - Local Authority
- Maintained nursery - Local Authority
- All independent schools - The proprietor
- Non-maintained special school - The proprietor.
If you do not think you are the Responsible Body you should write and tell us straight away, explaining why.
Is there a time limit to respond to the claim?
There is a strict time limit by which we must receive the case statement. We will tell you when you have to send in your case statement and attendance form. You will have 30 working days to submit the information.
What information needs to be submitted as part of the case statement?
The Responsible Body must submit the following:
- a copy of the disputed decision
- all evidence to be relied on which has not already been submitted
- a case statement
The case statement must:
- state whether or not the Responsible Body intends to oppose the claim,
- be signed by a person who is authorised to sign such documents for the Responsible Body
If the Responsible Body intends to oppose the claim the case statement must state:
- the grounds on which the claim or any part of the claim is opposed
- a summary of the facts
- the reasons for the disputed decision
- the steps, if any, already taken to resolve the dispute
- the views of the child concerning the issues raised in the claim, OR
- an explanation of why the Responsible Body has not established the child’s views
- the name and address of the Responsible Body’s representative
- the address for which documents for the Responsible Body should be sent.
Your case statement response should set out the relevant facts as you know them; about what happened, the child’s disability, and background information (e.g. school policies, earlier difficulties).
What should we do in relation to any of the remedies listed by the parents?
Whether or not you oppose the claim as a whole, you may wish to give a view on any remedies proposed by the parents. We have included an optional section in the claim form for parents to say what they think should be done to put things right. If they have completed this, please tell us how far you think the measures suggested would be reasonable. If you have suggestions of your own, these may also help us decide what should be done.
What should we do if we reach agreement on some of the issues in the claim?
Claims only reach us if you and parents have a disagreement, but it is quite in order for discussions between the parties to continue taking place after a claim has been made. It would be helpful if you told us about any parts of the claim that you and the parents have been able to resolve after we received the claim.
Should we dispute the claim?
The parents claim form includes an optional box in which they can say how they would like to see things put right. These may be things you are prepared to do without need for a Tribunal. If you agree that there has been discrimination but plan to put things right, the parents may be prepared to withdraw their claim.
If we dispute the claim will we need a lawyer?
Legal representation is not essential at Tribunal hearings. But you may choose to instruct a lawyer to attend in addition to your representative. If you consult a lawyer, or some other representative, you should do so as early as possible.
What happens if we do not oppose the claim?
If you do not oppose the claim you must write to us to tell us this by the end of the case statement period. You must include information about what action you intend to take to end the discrimination. We will then write to the parent to ask whether they wish to withdraw the claim. If they do not withdraw the claim will go to hearing at which the Responsible Body will not be able to attend.
What if the Responsible Body does not submit a reply?
If the Responsible Body does not send a response by the end of the time allowed, your claim will be passed to a Tribunal Chair who will decide what action should be taken. This may include refusing to allow the responsible body to take any further part in the proceedings.
Can we resolve the matter without a hearing?
It will generally be best if disputes can be resolved by agreement between you and the parents. It is quite proper to discuss the matter while a Tribunal claim is pending.
Communication difficulties may well have been a factor in the dispute. Parents can use the Equality and Human Rights Commission’s independent mediation service. If you take part in conciliation meetings, what you say in these meetings can only be used in a Tribunal hearing with your consent
Can I submit further information after the case statement?
Written evidence that is submitted after the deadline for case statements is called late written evidence. There are restrictions on the admission of late written evidence. Information about the late evidence rules are available under the Late Evidence Section of these FAQs.
Can the Responsible Body ask to strike out a Claim?
Yes, the Responsible Body can make an application on limited grounds for a claim to be struck out. If the Tribunal strikes out the claim it will bring it to an end. The only grounds on which a claim can be struck out are that the claim:
- Is made otherwise than in accordance with the Tribunal’s regulations;
- Is not or is no longer within the Tribunal’s jurisdiction;
- Discloses no reasonable grounds; and/or
- Is an abuse of the Tribunal’s process.
An application to strike out a claim must be made in writing setting out the grounds and reasons to be relied on in full.