Q:
Is it discrimination under Equality Act 2010? and is this considered a safeguarding issue?
Son is a full time wheelchair user (unable to stand or crawl) year 3 at mainstream village school. There were adaptions needed to access the top playground (keystage 2) and a ramp was put in last year.
On the 17th May, he suddenly said children were allowed to play on the grass bank alongside the playground (this is quite steep and the kids often roll down it). My son described how he felt sad and lonely as all he could do was sit and watch his friends. We explained this to the headteacher who at first defensively said:
1) No children are allowed on the bank, shortly after 2) The children are only allowed on the bank when i'm there 3) Then 10 minutes later, advised there were no rules about the bank. When further talks were had she advised she cant stop the kids going on as its the 'shaded area'.
My son told her how he felt and she said to him whilst I was sitting there "Its really fun going on the bank, that's why the children want to go on there, but they'll move onto something again soon."
We had asked if there could be rules applied that limited 2 houses (school are divided into 4 houses) on the bank at any one time. This would ensure that our son had some friends down on the playground with him at all times. No further communication from the head. We had also questioned why our sons 1-1 had not seen him alone and offered support, but this was not addressed.
On the 5th July, our son was upset again as he was made to feel this way again. When we questioned why this had not been addressed or rules put in place, we were told the Senco was meeting with the School Council (made up of children aged 8-10 years) the following week to decide the rules.
The rules they came back with is that each classroom/year group of 30 children are allowcated 2 x 30 minutes sessions at lunch on certain days.
We said that this per class (only one class per year at school) will make our son feel even more isolated from his peers.
We raised a complaint and have been told its not under the Equality Act 2010 as its a physical feature - but we are not asking them to flatten it, but just make reasonable adjustment to their rules/policies.
Also stated its not a safe guarding issue - surely if it is having an effect on our sons Mental Health and using the words that the head said to him, it is safeguarding.
We lodged a complaint to the governors whom have sent a really weak reply saying "the head never intended to cause any offence and regrets the vocabulary chosen.
They have looked at the timetables and confident our son receives 1-1 dedicated support. (That's as per his EHCP).
There has been a few things happen previously like everytime our son moves areas, new equipment has been put in the playgrounds from reception and key stage 1. Then when he moved up to this one, they got an accessible grant and the Head wanted to put in 'monkey bars' using the money, my son told us and we were able to speak with school and find something more appropriate but there seems little thought.
Just wanting for the head to take responsibility and show some care.
Any advice would be gratefully received.
Thank you.
A: SenseCheck
- 0 Yes
- 0 No
- 1 Other
- 10 Aug 2024
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Other
Simple
Too fact specific, I can't generalise.:
Ms Bazin,
There are a few issues here specific to your son, which are entirely understandable. While we can offer guidance, we cannot provide legal advice. That said, you may find the following points helpful. In considering this matter, I would suggest you download a copy of:
Which is in the process of being updated.
Firstly, schools are covered by the Equality Act 2010, and it is the responsibility of the school to ensure compliance. It follows that it could be unwise to delegate any of these responsibilities to, for example, pupils.
To be protected under the Equality Act 2010 concerning disability, one must meet the definition contained in section 6. Given the details you have provided about your son, there should be no dispute that he is disabled.
It seems you have identified a PCP (Provision, Criterion, or Practice) that applies to your son - this is the rule that prevents you child doing what other children do in the playground. Under the Equality Act 2010, a PCP is any rule, policy, or procedure that an organisation applies, which could unfairly disadvantage certain individuals or groups, potentially leading to claims of discrimination. If your son is substantially disadvantaged by a PCP, the school should take reasonable steps to avoid this disadvantage, commonly referred to as the duty to make reasonable adjustments. More broadly, schools should also consider indirect discrimination. Indirect discrimination under the Equality Act 2010 occurs when a seemingly neutral provision, criterion, or practice (PCP) applies to everyone but disproportionately disadvantages people with a particular protected characteristic (e.g., disability). This type of discrimination is unlawful unless the organisation can justify the PCP as a proportionate means of achieving a legitimate aim. In other words, even if something is applied equally to all, it can still be discriminatory if it unfairly impacts a specific group of pupils. Justifying indirect discrimination will always be a challenge when all reasonable adjustments have not been made.
The issue of safeguarding is noteworthy. It appears that what is being referenced is compliance with schools Health and Safety requirements. I would direct you to the following document:
Technical Guidance for Schools in England updated September 2023 - amended July 2024.
This document is analogous to a Code of Practice for the Equality Act 2010 in schools.
In relation to Health and Safety, the documents states that:
Health and safety requirements
- The Act does not override health and safety legislation. If making a particular adjustment would increase the risks to the health and safety of any person (including the disabled pupil in question), then this is a relevant factor in deciding whether it is reasonable to make that adjustment.
- However, as with the approach to any question of health and safety, and risk assessment, schools are not required to eliminate all risk. Suitable and sufficient risk assessments should be used to help the school to determine where risks are likely to arise and what action can be taken to minimise those risks. Risk assessments should be specific to the individual pupil and the activities in question. Proportionate risk management relevant to the disability should be an ongoing process throughout a disabled pupil’s time at the school.
- There might be instances in which, although an adjustment could be made, it would not be reasonable to do so because it would endanger the health and safety either of the disabled pupil or of other people. There might be other instances in which schools could make anticipatory reasonable adjustments in line with health and safety legislation, ensuring compliance with, and not infringing, that legislation.
- Health and safety issues must not be used inappropriately to avoid making a reasonable adjustment. Schools should avoid making uninformed assumptions about health and safety risks.
Examples:
- A disabled pupil with a stair-climbing wheelchair applies to a large secondary school with several flights of stairs. The school prevents him from using the stair-climbing wheelchair in the school because it thinks that it will be dangerous. However, after carrying out a risk assessment and finding out more about the wheelchair, the school realises that it does not present a significant health and safety risk, and therefore that it would be reasonable for the school to allow him to use it.
You may wish to contact the school in light of the above and share the said information with them. When considering the issue of reasonable adjustments, you may wish to suggest to the school what adjustments would be appropriate for you son in the circumstances that you have raised.
If you are not successful, you might consider making a disability discrimination claim to the First-tier Tribunal (FtT).
I hope this is helpful. If you have any further questions, please do not hesitate to ask.
Sean Kennedy
Sean Kennedy
Talem Law
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