For World Autism Acceptance Week, we look at some of the ways discrimination can arise for autistic children in schools, and ways in which such discrimination can be challenged.

What are the different types of disability discrimination that occur in schools?

Disability discrimination can take many different forms. This is reflected in the Equality Act 2010, which sets out the different types of discrimination. We examine some of the key provisions below and how they may apply in the context of autistic pupils.

Direct discrimination

If an autistic pupil is treated less favourably than a non-autistic pupil, and this less favourable treatment is because of the pupil’s autism, this will constitute direct discrimination.

Example: a school does not allow your child on a school trip because they have autism. This may amount to direct discrimination.

Indirect discrimination

If the school applies a ‘provision, criterion or practice’ (such as a school policy), which applies to both autistic and non-autistic pupils but puts autistic pupils at a particular disadvantage, this may amount to indirect discrimination. This is unless the school can show it is a proportionate means of achieving a legitimate aim.

Example: the school applies a universal policy where late homework results in a detention. This may amount to indirect discrimination, if the reason your child cannot meet such deadlines is due to their autism. The school would need to show a legitimate aim (for example maintaining academic standards) but also that it is proportionate. It is not clear in this example that applying such a universal policy without making adjustments for those who may struggle to meet deadlines as a result of their disability is proportionate.

Discrimination arising from a disability  

If an autistic pupil is treated less favourably because of something arising from their autism, this may be discrimination arising from a disability. As with indirect discrimination, this is unless the school can show the treatment is a proportionate means of achieving a legitimate aim. Furthermore, if the school can show they did not know, or could not reasonably have been expected to know, that the pupil was autistic, this will not amount to disability arising from a disability.

Example: your child is excluded due to their disruptive behaviour, but their behaviour is as a result of their autism. This may amount to discrimination arising from a disability.

Failure to make reasonable adjustments

Schools are under a duty to make reasonable adjustments to ensure disabled pupils are not discriminated against. Adjustments may include:

• Providing extra support
• Allowing a pupil to leave class early to avoid busy periods
• Providing visual aids

However, this does not extend to making physical alterations to buildings, such as adding handrails.

Example: if your child requires breaks outside of the classroom to regulate their emotions because of their autism, and the school fails to provide these breaks, this may amount to a failure to make reasonable adjustments

Victimisation

If you have taken action in relation to alleged discrimination (such as a complaint) or the school believes you have done so or may do so, and the school subjects you to a detriment as a result, this is likely to amount to victimisation.

Example: as a result of your complaint to the school about disability discrimination, you are no longer allowed to attend parents meetings as you’re seen as a ‘trouble-maker.’ This may amount to victimisation.

How to challenge disability discrimination in schools

Complaint

In the first instance, you may wish to consider a complaint to school if there are serious or repeated discriminatory acts. If the complaint procedure fails to resolve the issues, you may wish to consider taking legal action through a disability discrimination claim.

Appealing decisions on the basis of discrimination

Disability discrimination may also arise during particular processes and decisions such as admissions and exclusions. Schools remain under a duty not to discriminate on the basis of disability during these processes, so discrimination arguments can be raised in appealing an exclusion or refusal of admission. For example, government guidance on exclusions recognises that pupils with special educational needs are excluded at consistently higher than average rates. Schools should therefore consider what extra support may be needed to identify the needs of such pupils to reduce their risk of exclusion.

Disability discrimination claim

If a complaint or appeals process fails to resolve the issue, you may wish to bring a legal claim challenging the disability discrimination in the Special Educational Needs and Disability Tribunal. The Tribunal’s powers include:

• Ordering the implementation of reasonable adjustments
• Reinstatement of permanently excluded pupils
• Staff training
• Changes in school policy

The Tribunal does not however have the power to award monetary compensation or to order a physical alteration to school buildings.

A claim against a school for disability discrimination must be made within six months of the discrimination occurring.

Education, Health and Care Plans (EHCPs)

If your child is not receiving the support they require to meet their needs, you may also wish to consider putting in place, or appealing the contents of, their Education, Health and Care Plan (EHCP). If your child does not currently have an EHCP in place, you can request an Education, Health and Care Needs Assessment through your local authority. If your child does have a plan in place, but it does not meet their needs, you may wish to consider appealing the plan to the Special Educational Needs and Disability Tribunal (although this must be done within two months of receiving the final or amended EHCP, subject to specified additional time for mediation). 

Where it is not clear whether a school’s actions amount to disability discrimination, or you are not clear what steps to take to resolve the issues, you may wish to consider taking legal advice. Our education lawyers are able to advise on disability discrimination in schools, including in admissions and exclusions, as well as on claims and appeals to the Special Educational Needs and Disability Tribunal (SEND Tribunal).

Amy O’Shea, trainee solicitor in our Education team, contributed to this article.