The First-tier tribunal has found that a grammar school in England discriminated against a child with a visual impairment contrary to the Equality Act 2010 (the 2010 Act) when it refused to make reasonable adjustments for him to sit his 11+ entrance exam.
The case background
The child (X) had applied to Reading School which is a grammar school. X had a vision impairment which meant that certain adjustments had to be made (e.g. the use of larger text) before he was able to sit his entrance exam.
He was offered to take the exam at another school owned by the Slough Consortium of Grammar Schools. However, the day before the exam was due to take place, this school said they could not make the requested adjustments as they would cost over £2,000.
The Royal National Institute of Blind People (RNIB) referred the case to the Equality and Human Rights Commission (EHRC). The RNIB stated that it had been concerned for some time about the accessibility of entrance exams for visually impaired children.
The EHRC and RNIB funded a legal challenge to the First-tier Tribunal (Special Educational Needs and Disability) against Reading School. The claim was made under section 85 of the 2010 Act, which requires that schools do not discriminate in the arrangements determining a prospective student's admission. X argued that the school had discriminated on the ground of disability, by failing to make reasonable adjustments required under the 2010 Act.
What was the result?
At the hearing, Reading School accepted that the requested adjustments were reasonable and therefore required under the 2010 Act. However, they claimed that because they had no knowledge of the request (as it had been made to the Slough Consortium of Grammar Schools) they were not themselves required to make the adjustments. The Tribunal rejected this argument and found in favour of X that reasonable adjustments should have been made by Reading School to allow X to sit the entrance exam.
This decision will have implications for all schools operating entrance exams. Using a consortium will not exempt the school from the requirement to make reasonable adjustments in order to prevent disabled students being put at a substantial disadvantage compared to non-disabled students. The Tribunal expressly recommended that all consortia have an agreed written policy setting out how adjustments are to be made for disabled children sitting entrance exams.
Following this ruling, the EHRC has written to all grammar schools, selective schools and consortia in England reminding them of their duty not to discriminate against disabled children.
What might this mean for independent schools in Scotland?
In Scotland, independent schools are likely to encounter the question of when to make reasonable adjustments for a prospective disabled student sitting an entrance exam. In this case, Reading School fell foul of the test even where it was not administering the exam, demonstrating the need for independent schools to pay particular attention to their reasonable adjustment obligations.
The 2010 Act gives little guidance on how these obligations operate, as each case will turn on its own particular facts. The EHRC's Technical Guidance for Schools in Scotland gives a non-exhaustive list of factors that should be considered by a school when determining what adjustments they have to make including:
- The extent to which taking any particular step would be effective in overcoming the substantial disadvantage suffered by a disabled pupil;
- The resources of the school and the availability of financial or other assistance; and
- The financial and other costs of making the adjustment.