Special Educational Needs and Disability Act 2001

Duties of responsible bodies

26 Discrimination against disabled students and prospective students

(1) In the 1995 Act, insert the following section—

“Chapter 2 Further and Higher Education

Duties of responsible bodies

28R Discrimination against disabled students and prospective students

(1) It is unlawful for the body responsible for an educational institution to discriminate against a disabled person—

(a) in the arrangements it makes for determining admissions to the institution;

(b) in the terms on which it offers to admit him to the institution; or

(c) by refusing or deliberately omitting to accept an application for his admission to the institution.

(2) It is unlawful for the body responsible for an educational institution to discriminate against a disabled student in the student services it provides, or offers to provide.

(3) It is unlawful for the body responsible for an educational institution to discriminate against a disabled student by excluding him from the institution, whether permanently or temporarily.

(4) In the case of an act which constitutes discrimination by virtue of section 55, this section also applies to discrimination against a person who is not disabled.

(5) The body responsible for an educational institution is to be determined in accordance with Schedule 4B, and in the remaining provisions of this Chapter is referred to as the “responsible body”.

(6) “Educational institution”, in relation to England and Wales, means an institution—

(a) within the higher education sector;

(b) within the further education sector; or

(c) designated in an order made by the Secretary of State.

(7) “Educational institution”, in relation to Scotland, means—

(a) an institution within the higher education sector (within the meaning of section 56(2) of the Further and Higher Education (Scotland) Act 1992);

(b) a college of further education with a board of management within the meaning of section 36 of that Act;

(c) a central institution within the meaning of section 135 of the Education (Scotland) Act 1980;

(d) a college of further education maintained by an education authority in the exercise of their further education functions in providing courses of further education within the meaning of section 1(5)(b)(ii) of that Act;

(e) an institution designated in an order made by the Secretary of State.

(8) Subsection (6) is to be read with section 91 of the Further and Higher Education Act 1992.

(9) The Secretary of State may not make an order under subsection (6)(c) or (7)(e) unless he is satisfied that the institution concerned is wholly or partly funded from public funds.

(10) Before making an order under subsection (7)(e), the Secretary of State must consult the Scottish Ministers.

(11) “Student services” means services of any description which are provided wholly or mainly for students.

(12) Regulations may make provision as to services which are, or are not, to be regarded for the purposes of subsection (2) as student services.”

(2) In the 1995 Act, insert the Schedule set out in Schedule 4.

27 Meaning of “discrimination”

In the 1995 Act, insert the following section—

“28S Meaning of “discrimination”

(1) For the purposes of section 28R, a responsible body discriminates against a disabled person if—

(a) for a reason which relates to his disability, it treats him less favourably than it treats or would treat others to whom that reason does not or would not apply; and

(b) it cannot show that the treatment in question is justified.

(2) For the purposes of section 28R, a responsible body also discriminates against a disabled person if—

(a) it fails, to his detriment, to comply with section 28T; and

(b) it cannot show that its failure to comply is justified.

(3) In relation to a failure to take a particular step, a responsible body does not discriminate against a person if it shows—

(a) that, at the time in question, it did not know and could not reasonably have been expected to know, that he was disabled; and

(b) that its failure to take the step was attributable to that lack of knowledge.

(4) The taking of a particular step by a responsible body in relation to a person does not amount to less favourable treatment if it shows that at the time in question it did not know, and could not reasonably have been expected to know, that he was disabled.

(5) Subsections (6) to (9) apply in determining whether, for the purposes of this section—

(a) less favourable treatment of a person, or

(b) failure to comply with section 28T,

is justified.

(6) Less favourable treatment of a person is justified if it is necessary in order to maintain—

(a) academic standards; or

(b) standards of any other prescribed kind.

(7) Less favourable treatment is also justified if—

(a) it is of a prescribed kind;

(b) it occurs in prescribed circumstances; or

(c) it is of a prescribed kind and it occurs in prescribed circumstances.

(8) Otherwise less favourable treatment, or a failure to comply with section 28T, is justified only if the reason for it is both material to the circumstances of the particular case and substantial.

(9) If, in a case falling within subsection (1)—

(a) the responsible body is under a duty imposed by section 28T in relation to the disabled person, but

(b) fails without justification to comply with that duty,

its treatment of that person cannot be justified under subsection (8) unless that treatment would have been justified even if it had complied with that duty.”

28 Disabled students not to be substantially disadvantaged

In the 1995 Act, insert the following section—

“28T Disabled students not to be substantially disadvantaged

(1) The responsible body for an educational institution must take such steps as it is reasonable for it to have to take to ensure that—

(a) in relation to the arrangements it makes for determining admissions to the institution, disabled persons are not placed at a substantial disadvantage in comparison with persons who are not disabled; and

(b) in relation to student services provided for, or offered to, students by it, disabled students are not placed at a substantial disadvantage in comparison with students who are not disabled.

(2) In considering whether it is reasonable for it to have to take a particular step in order to comply with its duty under subsection (1), a responsible body must have regard to any relevant provisions of a code of practice issued under section 53A.

(3) Subsection (4) applies if a person has made a confidentiality request of which a responsible body is aware.

(4) In determining whether it is reasonable for the responsible body to have to take a particular step in relation to that person in order to comply with its duty under subsection (1), regard shall be had to the extent to which taking the step in question is consistent with compliance with that request.

(5) “Confidentiality request” means a request made by a disabled person, which asks for the nature, or asks for the existence, of his disability to be treated as confidential.

(6) This section imposes duties only for the purpose of determining whether a responsible body has discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such.”

29 Further education etc. provided by local education authorities and schools

(1) In the 1995 Act, insert the following section—

“Other providers of further education or training facilities

28U Further education etc. provided by local education authorities and schools

(1) Part 1 of Schedule 4C modifies this Chapter for the purpose of its application in relation to—

(a) higher education secured by a local education authority;

(b) further education—

(i) secured by a local education authority; or

(ii) provided by the governing body of a maintained school;

(c) recreational or training facilities secured by a local education authority.

(2) Part 2 of that Schedule modifies this Chapter for the purpose of its application in relation to—

(a) further education, within the meaning of section 1(5)(b)(iii) of the Education (Scotland) Act 1980;

(b) facilities whose provision is secured by an education authority under section 1(3) of that Act.”

(2) In the 1995 Act, insert the Schedule set out in Schedule 5.