The Special Educational Needs and Disability (Northern Ireland) Order 2005

Meaning of “discrimination”

15.—(1) For the purposes of Article 14, 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 Article 14, a responsible body also discriminates against a disabled person if—

(a) it fails, to his detriment, to comply with Article 16; 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) Paragraphs (6) to (8) apply in determining whether, for the purposes of this Article—

(a) less favourable treatment of a person, or

(b) failure to comply with Article 16,

is justified.

(6) Less favourable treatment of a person is justified if it is the result of —

(a) the application of the admission criteria drawn up for a grant-aided school under Article 16(1) of the Education (Northern Ireland) Order 1997 (NI 5) or Article 32(1) of the Education (Northern Ireland) Order 1998 (NI 13); or

(b) any arrangements which make provision for any or all of the pupils of an independent school to be selected by reference to general or special ability or aptitude, with a view to admitting only pupils of high ability or aptitude.

(7) Otherwise, less favourable treatment, or a failure to comply with Article 16, is justified only if the reason for it is both material to the circumstances of the particular case and substantial.

(8) If, in a case falling within paragraph (1)—

(a) the responsible body is under a duty imposed by Article 16 in relation to the disabled person, but

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

its treatment of that person cannot be justified under paragraph (7) unless that treatment would have been justified even if it had complied with that duty.