Under the Disability Discrimination Act 1995, schools were exempt from providing auxiliary aids and services for disabled pupils, such as sign language, interpreters or information in format such as Braille or audiotape. These reasonable adjustments for disabled children in relation to auxiliary aids would be provided under separate legislation - in Scotland the Education (Additional Support for Learning) (Scotland) Act 2004 and the Education (Disability Strategies and Pupils' Educational Records) (Scotland) Act 2002.
Current Scottish Legislative Position
The Education (Additional Support for Learning) (Scotland) Act 2004 (as amended) does not specifically require the provision of auxiliary aids in schools, although local authorities do have a duty to make adequate and efficient provision for the additional support required for each child or young person with additional support needs for whose school education they are responsible for (s.4). This duty does not require local authorities to do anything which would result in unreasonable public expenditure being incurred (s.4(2)(b))
The Education (Disability Strategies and Pupils' Educational Records) (Scotland) Act 2002 requires local authorities and owners of independent schools to prepare a strategy to increase the physical accessibility of the school environment and the accessibility of the curriculum for disabled pupils. The strategy must also provide for the improvement of communication with disabled pupils, and must have regard to the need to allocate adequate resources.
However, following recommendations from the Lamb Inquiry into parental confidence in the Special Educational Needs System in England a UK Government amendment was made to the Equality Act removing the exemption on schools and authorities in England, Wales and Scotland to provide auxiliary aids and services.
The Equality Act
The Equality Act which received Royal Assent on 8 April 2010 aims to strengthen the law to support progress on equality. The Act consolidates and harmonises a range of equality legalisation, replacing familiar laws such as the Sex Discrimination Act 1975, the Race Relation Act 1976 and the Disability Discrimination Act 1995.
The Equality Act provides protection from discrimination, harassment and victimisation based on a range of 'protected characteristics'. These characteristics are defined in the Act as race, sex, disability, sexual orientation, religion or belief, age, gender reassignment, pregnancy and maternity, and marriage and civil partnership.
Specific duty within Equality Act to provide auxiliary aids and services
Schedule 13 of the Act requires schools to provide auxiliary aids and services to disabled pupils where it is reasonable to do. It covers pupils who come within the definition of disabled persons in the Equality Act. Those pupils must, for the provision of an auxiliary aid or service, be at a "substantial disadvantage" in comparison with non-disabled pupils. It must be reasonable for schools and local authorities to take steps to avoid that disadvantage by providing the auxiliary aid or service. Cost would be a consideration in deciding whether it is reasonable to take such steps.
In some cases the support a disabled pupil may receive under the Education (Additional Support for Learning) (Scotland) Act 2004 (as amended) ("the ASL Act") may mean that they do not suffer a substantial disadvantage and so there is no need for additional reasonable adjustments to be made for them. In other cases disabled pupils may require reasonable adjustments on top of the additional support they are receiving. There are also disabled pupils who do not have additional support needs under the ASL Act but still require reasonable adjustments to be made for them. These needs may also be addressed under the Education (Disability Strategies and Pupils' Educational Records) (Scotland) Act 2002 and therefore no reasonable adjustments may be needed for them.
The specific provision being commenced is paragraph 2 of schedule 13 to the Equality Act in so far as it relates to the third requirement. The third requirement is provided for in section 20(5) of the Equality Act and is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid."
What this will mean in practice
Certainly there is an expectation of the Scottish Government that this new duty will have limited impact on local authority supported schools and local authorities in Scotland based on the legislative position already held (as set out above).
The duty to make reasonable adjustment to provide auxiliary aids and services also applies to independent schools and grant aided schools. These schools are not in the same situation as local authority schools as they do not routinely have available to them the local authority's support services. However, the local authority duty to identify and address additional support needs of children and young people, for whose education they are responsible, who face a barrier, or barriers, to learning is there regardless of where that learning may take place (under the ASL Act). Indeed local authorities may place a child within an independent school if that school setting is deemed best for the child in question to support the additional needs they have. It is unlikely that the auxiliary aids duty would be relevant to these children as they will already have access to any aid that it might be reasonable to provide.
Grant aided schools are independent special schools funded by the Scottish Government. The auxiliary aids duty will apply to them as to other independent schools.
Whether schools and local authorities will be under a duty to provide auxiliary aids and services will depend on the facts of each individual case and the Scottish Government cannot give definitive guidance on what will be considered to be an auxiliary aid or service and when it will be reasonable to provide them. It would be for the Additional Support Needs Tribunals Scotland ( ASNTS) to hear such claims if there was a dispute.
Is this duty likely to have any major implications for schools (in any setting) or any related bodies?
Section 20(11) of the Equality Act provides that "an auxiliary aid includes a reference to an auxiliary service", but there is no definition of auxiliary aid in law. There is also no legal definition of what is reasonable when making a reasonable adjustment. Section 22 and section 208(1) of the Equality Act give a power to a Minister of the Crown in the UK Government to make regulations to identify things to be taken into account in deciding what are "reasonable"; circumstances in which it is, or in which it is not, reasonable for a person of a prescribed description (such as a school or a local authority) to have to take steps of a prescribed description; and things which are, or which are not, to be treated as auxiliary aids. The regulation making power in section 22 and 208 is already in force.
Such powers to make such Regulations have been available since the Disability Discrimination Act 1995 came into force but, so far, no Regulations have been made. Providers, such as early years providers, to whom the auxiliary aids duty has applied since that time have met the duty without having Regulations.
The Equality and Human Rights Commission Scotland will be producing a statutory code of practice for schools which will give examples of when it is likely that it would be reasonable for a school or local authority to provide an auxiliary aid or service. Schools and local authorities should have regard to the Code.
(a) Should Regulations be made in respect of the new auxiliary aids duty on schools and local authorities?
(b) If your answer to question (a) is yes, please offer comments and suggestions on what the regulations should provide for. When responding to this question please bear in mind that the power to make regulations only permits the following matters to be prescribed:
- matters to be taken into account in deciding whether it is reasonable for a person to have to take a particular step;
- circumstances in which it is, or in which it is not, reasonable for a person (such as a school or local authority) to have to take steps of a prescribed description; or
- things which are, or which are not, to be treated as auxiliary aids.
When the duty will commence
The Scottish Government is undertaking this consultation on behalf of the UK Government. The UK Government have proposed a commencement date of 1 September 2012 for this duty. This is to ensure local authorities, schools and related bodies have time to prepare for commencement.
(a) Do you think 1 September 2012 is the right commencement date for the new auxiliary aids duty?
(b) If you think that the commencement date should be later than September 2012, please state when you think the earliest commencement date should be and the reasons why having a later commencement date would be appropriate.