Within the spectrum of educational responsibilities, the Equality Act 2010 mandates schools to make reasonable adjustments for disabled pupils. But the meaning of ‘reasonable adjustments’ has not always been clear. This recent Upper Tribunal appeal, involving a special school as the appellant and a transition plan required in the child’s EHC Plan, provides useful guidance. The case remains relevant for Local Authorities who regularly engage with schools to form transition plans in EHC Plan appeals.
Background to A Multi Academy Trust v RR [2024]
SR, an adopted child with Foetal Alcohol Spectrum Disorder, qualifies as a disabled person under the Equality Act 2010. Section F of the EHC Plan outlined a carefully planned transition programme to integrate him into school classes. This included the nature and delivery of a structured programme to address disengagement, inattention, optimism and mood management.
In 2022, the First Tier Tribunal (FTT) found that, although the school conducted some transition planning for SR’s move from one year to another, there was a lack of specificity. The FTT’s view was that such lack of certainty and clarity placed disabled pupils generally at a substantial disadvantage compared with non-disabled pupils. Reasonable adjustments had not been made in the transitional plan, resulting in a breach of Section 20(3) of the Equality Act 2010.
Upper-Tribunal decision – 29 December 2023
The school, as the appellant, challenged the FTT’s decision. It argued that it had misapplied the substantial disadvantage requirement to “disabled pupils generally” and there was lack of evidence because a correct comparator group had not been adequately identified.
Evaluating reasonable adjustments for disabled pupils in a setting should look at how a sub-class of disabled pupils will be affected by the provision, criterion or practice – not solely on needs of the individual claimant. The comparison group for determining any substantial disadvantage does not include individuals who share the same disabilities.
The Upper Tribunal partially allowed the appeal, setting aside the decision of the FTT due to a legal error. The FTT's conclusion referred to 'disabled pupils generally,' but it was unclear whether this encompassed all disabled pupils or a specific subset, and if so, which one. Furthermore, there was no evidence indicating that the school’s transition plan would impact anyone disabled other than SR.
Practical implications for Local Authorities
When Local Authorities work with schools on transition plans as per provision within the EHC Plan, such as re-engaging pupils who have received education outside of a school for a period, there is a need for it to be individualised and clear. Clear reference to the nature, amount and type of support to be provided will reduce ambiguity and minimise the risks of any failures in duty.
The case has been referred back to the FTT for further clarification. Local Authorities should closely monitor this development as it is likely to lead to a more nuanced approach to disability discrimination in educational settings. This could impact the nature of discussions regarding transition plans and provision in schools as to Section I of the EHC Plan.