Special Educational Needs and Disability Bill [H.L.] - continued        House of Lords

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  PART II
  DISABILITY DISCRIMINATION IN EDUCATION
  CHAPTER I
  SCHOOLS
 
Duties of responsible bodies
Discrimination against disabled pupils and prospective pupils.     10. - (1) In Part IV of the Disability Discrimination Act 1995 ("the 1995 Act"), before section 29, insert the following section-
 
 
"CHAPTER I
  SCHOOLS
 
Duties of responsible bodies
Discrimination against disabled pupils and prospective pupils.     28A. - (1) It is unlawful for the body responsible for a school to discriminate against a disabled person-
 
 
    (a) in the arrangements it makes for determining admission to the school as a pupil;
 
    (b) in the terms on which it offers to admit him to the school as a pupil; or
 
    (c) by refusing or deliberately omitting to accept an application for his admission to the school as a pupil.
      (2) It is unlawful for the body responsible for a school to discriminate against a disabled pupil in the education or associated services provided for, or offered to, pupils at the school by that body.
 
      (3) The Secretary of State may by regulations prescribe services which are, or services which are not, to be regarded for the purposes of subsection (2) as being-
 
 
    (a) education; or
 
    (b) an associated service.
      (4) It is unlawful for the body responsible for a school to discriminate against a disabled pupil by excluding him from the school, whether permanently or temporarily.
 
      (5) The body responsible for a school is to be determined in accordance with Schedule 4A, and in the remaining provisions of this Chapter is referred to as the "responsible body".
 
      (6) 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."
 
      (2) In the 1995 Act, insert the Schedule set out in Schedule 1.
 
Meaning of "discrimination".     11. In the 1995 Act, insert the following section-
 
 
"Meaning of "discrimination".     28B. - (1) For the purposes of section 28A, 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 28A, a responsible body also discriminates against a disabled person if-
 
 
    (a) it fails, to his detriment, to comply with section 28C; 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 (8) apply in determining whether, for the purposes of this section-
 
 
    (a) less favourable treatment of a person, or
 
    (b) failure to comply with section 28C,
       is justified.
 
      (6) Less favourable treatment of a person is justified if it is the result of a permitted form of selection.
 
      (7) Otherwise, less favourable treatment, or a failure to comply with section 28C, 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 subsection (1)-
 
 
    (a) the responsible body is under a duty imposed by section 28C 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 subsection (7) unless that treatment would have been justified even if it had complied with that duty."
 
Disabled pupils not to be substantially disadvantaged.     12. In the 1995 Act, insert the following section-
 
 
"Disabled pupils not to be substantially disadvantaged.     28C. - (1) The responsible body for a school 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 the admission of pupils to the school, disabled persons are not placed at a substantial disadvantage in comparison with persons who are not disabled; and
 
    (b) in relation to education and associated services provided for, or offered to, pupils at the school by it, disabled pupils are not placed at a substantial disadvantage in comparison with pupils who are not disabled.
      (2) That does not require the responsible body to-
 
 
    (a) remove or alter a physical feature (for example, one arising from the design or construction of the school premises or the location of resources); or
 
    (b) provide auxiliary aids or services.
      (3) Regulations may make provision, for the purposes of this section-
 
 
    (a) as to circumstances in which it is reasonable for a responsible body to have to take steps of a prescribed description;
 
    (b) as to steps which it is always reasonable for a responsible body to have to take;
 
    (c) as to circumstances in which it is not reasonable for a responsible body to have to take steps of a prescribed description;
 
    (d) as to steps which it is never reasonable for a responsible body to have to take.
      (4) In determining whether it is reasonable for a responsible body to have to take a particular step in order to comply with its duty under subsection (1), regard shall be had, in particular, to-
 
 
    (a) the need to maintain academic, musical, sporting and other standards;
 
    (b) the financial resources available to the responsible body;
 
    (c) the cost of taking a particular step;
 
    (d) the extent to which it is practicable to take a particular step;
 
    (e) the extent to which aids or services will be provided to disabled pupils at the school under-
 
      (i) Part IV of the Education Act 1996; or
 
      (ii) sections 60 to 65G of the Education (Scotland) Act 1980;
 
    (f) health and safety requirements;
 
    (g) the interests of other pupils and persons who may be admitted to the school as pupils.
      (5) Subsection (6) applies if, in relation to a person, a confidentiality request has been made of which a responsible body is aware.
 
      (6) 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.
 
      (7) "Confidentiality request" means a request made by the parent of a disabled person that the existence or nature of his disability be treated as confidential.
 
      (8) 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."
 
Accessibility strategies and plans.     13. - (1) In the 1995 Act, insert the following section-
 
 
"Accessibility strategies and plans.     28D. - (1) Each local education authority-
 
    (a) must prepare in writing a strategy (their "accessibility strategy") for improving, over a prescribed period, the physical environment of schools for which they are the responsible body for the purpose of increasing the extent to which disabled pupils are able to take advantage of education and associated services provided or offered by those schools, and
 
    (b) must prepare further such strategies at such times as may be prescribed.
      (2) Each local education authority must keep their accessibility strategy under review during the period to which it relates and, if necessary, revise it.
 
      (3) It is the duty of each local education authority to implement their accessibility strategy.
 
      (4) An inspection under section 38 of the Education Act 1997 (inspections of local education authorities) may extend to the performance by a local education authority of their functions in relation to the preparation, review, revision and implementation of their accessibility strategy.
 
      (5) Subsections (6) to (9) apply to-
 
 
    (a) maintained schools;
 
    (b) independent schools; and
 
    (c) special schools which are not maintained special schools but which are approved by the Secretary of State, or by the National Assembly, under section 342 of the Education Act 1996.
      (6) The responsible body-
 
 
    (a) must prepare in writing a plan (its "accessibility plan") for improving, over a prescribed period, the physical environment of the school for the purpose of increasing the extent to which disabled pupils are able to take advantage of education and associated services provided or offered by the school, and
 
    (b) must prepare further such plans at such times as may be prescribed.
      (7) During the period to which the plan relates, the responsible body must keep its accessibility plan under review and, if necessary, revise it.
 
      (8) It is the duty of the responsible body to implement its accessibility plan.
 
      (9) An inspection under the School Inspections Act 1996 may extend to the performance by the responsible body of its functions in relation to the preparation, publication, review, revision and implementation of its accessibility plan.
 
      (10) For a maintained school, the duties imposed by subsections (6) to (8) are duties of the governing body.
 
      (11) Regulations may prescribe services which are, or services which are not, to be regarded for the purposes of this section as being-
 
 
    (a) education; or
 
    (b) an associated service.
      (12) In this section and in section 28E, "local education authority" has the meaning given in section 12 of the Education Act 1996.
 
      (13) In relation to Wales-
 
 
    "prescribed" means prescribed in regulations; and
 
    "regulations" means regulations made by the National Assembly.
      (14) "Disabled pupil" includes a disabled person who may be admitted to the school as a pupil.
 
      (15) "Maintained school" and "independent school" have the meaning given in section 28Q(5)."
 
      (2) For subsections (6) and (7) of section 317 of the 1996 Act (governing body to include information about disabled pupils in annual report) substitute-
 
 
    "(6) Each governors' report shall also include information as to-
 
 
    (a) the arrangements for the admission of disabled persons as pupils at the school,
 
    (b) the steps taken to prevent disabled pupils from being treated less favourably than other pupils,
 
    (c) the facilities provided to assist access to the school by disabled pupils, and
 
    (d) the plan prepared by the governing body under section 28D of the Disability Discrimination Act 1995 ("the 1995 Act").
      (7) "Governors' report" means the report prepared under section 42(1) of the School Standards and Framework Act 1998.
 
      (7A) "Disabled person" means a person who is a disabled person for the purposes of the 1995 Act; and section 28Q of the 1995 Act (interpretation) applies for the purposes of subsection (6) as it applies for the purposes of Chapter I of Part IV of that Act."
 
Accessibility strategies and plans: procedure.     14. In the 1995 Act, insert the following section-
 
 
"Accessibility strategies and plans: procedure.     28E. - (1) In preparing their accessibility strategy, a local education authority must have regard to-
 
    (a) the need to allocate adequate resources for implementing the strategy; and
 
    (b) any guidance issued as to-
 
      (i) the content of an accessibility strategy;
 
      (ii) the form in which it is to be produced; and
 
      (iii) the persons to be consulted in its preparation.
      (2) A local education authority must have regard to any guidance issued as to compliance with the requirements of section 28D(2).
 
      (3) Guidance under subsection (1)(b) or (2) may be issued-
 
 
    (a) for England, by the Secretary of State; and
 
    (b) for Wales, by the National Assembly.
      (4) In preparing an accessibility plan, the responsible body must have regard to the need to allocate adequate resources for implementing the plan.
 
      (5) If the Secretary of State asks for a copy of-
 
 
    (a) the accessibility strategy prepared by a local education authority in England, or
 
    (b) the accessibility plan prepared by the proprietor of an independent school (other than a city academy) in England,
       the strategy or plan must be given to him.
 
      (6) If the National Assembly asks for a copy of-
 
 
    (a) the accessibility strategy prepared by a local education authority in Wales, or
 
    (b) the accessibility plan prepared by the proprietor of an independent school in Wales,
       the strategy or plan must be given to it.
 
      (7) If asked to do so, a local education authority must make a copy of their accessibility strategy available for inspection at such reasonable times as they may determine.
 
      (8) If asked to do so, the proprietor of an independent school which is not a city academy must make a copy of his accessibility plan available for inspection at such reasonable times as he may determine.
 
      (9) "Accessibility strategy" and "accessibility plan" have the same meaning as in section 28D."
 
Residual duty of education authorities.     15. In the 1995 Act, insert the following sections-
 
 

"Residual duty of education authorities
Duty of education authorities not to discriminate.     28F. - (1) This section applies to-
 
 
    (a) the functions of a local education authority under the Education Acts; and
 
    (b) the functions of an education authority under-
 
      (i) the Education (Scotland) Act 1980;
 
      (ii) the Education (Scotland) Act 1996; and
 
      (iii) the Standards in Scotland's Schools etc. Act 2000.
      (2) But it does not apply to any prescribed function.
 
      (3) In discharging a function to which this section applies, it is unlawful for the authority to discriminate against-
 
 
    (a) a disabled pupil; or
 
    (b) a disabled person who may be admitted to a school as a pupil.
      (4) But an act done in the discharge of a function to which this section applies is unlawful as a result of subsection (3) only if no other provision of this Chapter makes that act unlawful.
 
      (5) 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.
 
      (6) In this section and section 28G, "local education authority" has the meaning given in section 12 of the Education Act 1996.
 
      (7) "The Education Acts" has the meaning given in section 578 of the Education Act 1996.
 
      (8) In this section and section 28G, "education authority" has the meaning given in section 135(1) of the Education (Scotland) Act 1980.
 
Residual duty: supplementary provisions.     28G. - (1) Section 28B applies for the purposes of section 28F as it applies for the purposes of section 28A with the following modifications-
 
 
    (a) references to a responsible body are to be read as references to an authority; and
 
    (b) references to section 28C are to be read as references to subsections (2) to (4).
      (2) Each authority must take such steps as it is reasonable for it to have to take to ensure that, in discharging any function to which section 28F applies-
 
 
    (a) disabled persons who may be admitted to a school as pupils are not placed at a substantial disadvantage in comparison with persons who are not disabled; and
 
    (b) disabled pupils are not placed at a substantial disadvantage in comparison with pupils who are not disabled.
      (3) That does not require the authority to-
 
 
    (a) remove or alter a physical feature; or
 
    (b) provide auxiliary aids or services.
      (4) This section imposes duties only for the purpose of determining whether an authority has discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such.
 
      (5) A reference in sections 28I, 28K(1), 28M(6) and 28P to a responsible body is to be read as including a reference to a local education authority in relation to a function to which section 28F applies.
 
      (6) A reference in section 28N and 28P to a responsible body is to be read as including a reference to an education authority in relation to a function to which section 28F applies.
 
      (7) "Authority" means-
 
 
    (a) in relation to England and Wales, a local education authority; and
 
    (b) in relation to Scotland, an education authority."
 
Enforcement
Special Educational Needs and Disability Tribunal.     16. - (1) In the 1995 Act, insert the following section-
 
 

"Enforcement: England and Wales
Special Educational Needs and Disability Tribunal.     28H. - (1) The Special Educational Needs Tribunal-
 
 
    (a) is to continue to exist; but
 
    (b) after the commencement date is to be known as the Special Educational Needs and Disability Tribunal.
      (2) It is referred to in this Chapter as "the Tribunal".
 
      (3) In addition to its jurisdiction under Part IV of the Education Act 1996, the Tribunal is to exercise the jurisdiction conferred on it by this Chapter.
 
      (4) "Commencement date" means the day on which section 16 of the Special Educational Needs and Disability Act 2001 comes into force."
 
      (2) Section 10 of the Disabled Persons (Services, Consultation and Representation) Act 1986 (consultation on appointments) is not to apply to appointments to the lay panel.
 
      (3) "The lay panel" has the meaning given in section 33(2)(c) of the 1996 Act.
 
Jurisdiction and powers of the Tribunal.     17. In the 1995 Act, insert the following section-
 
 
"Jurisdiction and powers of the Tribunal.     28I. - (1) A claim that a responsible body-
 
    (a) has discriminated against a person ("A") in a way which is made unlawful under this Chapter, or
 
    (b) is by virtue of section 58 to be treated as having discriminated against a person ("A") in such a way,
       may be made to the Tribunal by A's parent.
 
      (2) But this section does not apply to a claim to which section 28K or 28L applies.
 
      (3) If the Tribunal considers that a claim under subsection (1) is well founded-
 
 
    (a) it may declare that A has been unlawfully discriminated against; and
 
    (b) if it does so, it may make such order as it considers reasonable in all the circumstances of the case.
      (4) The power conferred by subsection (3)(b)-
 
 
    (a) may, in particular, be exercised with a view to obviating or reducing the adverse effect on the person concerned of any matter to which the claim relates; but
 
    (b) does not include power to order the payment of any sum by way of compensation."
 
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