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The noble Baroness said: Clause 12 requires the responsible body of a school--by which we take it to mean the head teacher and the governing body--to ensure that discrimination of a disabled person does not take place. However, it goes on to specify the two circumstances where it should not take place; first, in the admissions procedure to the school; and, secondly, within the school once the pupil has been admitted. In both those subsections the clause specifies that the disabled persons,
My concern here is with the word "substantial". I understand that once a disabled person is a pupil at the school there can be a measure of disadvantage compared with other pupils--and that is true--even with the best will in the world to keep such disadvantage to a minimum. The disabled pupil might, for example, be physically slower to get around the school; might find certain facilities that we all take for granted usable but not totally convenient; and so forth. It is fair enough, therefore, for the clause to make unlawful substantial disadvantage for the pupil once in the school. Such a qualification concedes that there may always be some disadvantage, even if such disadvantage is kept to a minimum. Where I find the qualification "substantial" unacceptable is in the first subsection; that relating to the arrangements for admission to the school.
The school will invite applications and will publish its admissions criteria. If it is an academically selective school it will apply some form of selection test; if it seeks other abilities or skills, such as music or drama or sport, it will set its admissions criteria accordingly. If the school is over-subscribed, it will have to apply some kind of pre-published selection process such as siblings of the pupils at the school and then, probably, how far from the school a child lives.
In none of that should the disabled applicant to the school be treated any differently from the rest of the applicants. Thus it is that I say there should be no disadvantage to the disabled person in comparison with other persons when applying for a place at the school. Hence my amendment drops the word "substantial" from subsection (1)(a)--the one concerning admissions to the school. Thus it leaves the wording that there should be no disadvantage.
If the Government argue that the word "substantial" should remain and my removal of it is not acceptable, then another form of words I should like to propose at the next stage of the Bill is "reasonably avoidable". A view needs to be taken which can be tested as to whether the reason for discriminating against a pupil could be avoidable in
Lord Lucas: I support my noble friend's amendment most strongly. It is absolutely right that there should in principle be no discrimination in the provision arrangements. There is little excuse for it. Certainly my noble friend's back-up wording would seem to cover any possible faults. It would give me particular pleasure to see the word "substantial" taken out because of the amount of time I spent last year trying to get the Government to put it into the Freedom of Information Bill.
Lord Rix: Looking at the semantics of this amendment, if the Government insist on leaving in a word such as "substantial", I wrote down two words that might do almost as well: one is "unjustifiable"; the other is "avoidable", which might suit matters better. The requirement would then be that disabled persons should not be placed at an avoidable or unjustifiable disadvantage. I wonder whether those two words might be more suitable.
Baroness Blatch: I do not know whether the noble Lord is addressing that question to me, but I would welcome a debate about the important issue of negotiating an appropriate word. The point I want to make most strongly is that "substantial" is the wrong word here.
The amendment would remove "substantial" from the trigger for reasonable adjustments to admission arrangements. It would place schools and post-16 institutions under a duty to make reasonable adjustments to admission arrangements whenever a disabled pupil or student faced a disadvantage, however trivial. We are not legislating to overcome mere slight disadvantage; we are legislating to ensure that schools, colleges and universities help disabled pupils and students where there are real barriers to accessing education. "Substantial" is a well understood term and the Disability Rights Task Force recommended that it should be the trigger for the reasonable adjustment duty on schools and post-16 institutions.
The amendment would create one trigger for reasonable adjustments to admission arrangements and a different trigger for reasonable adjustments to the educational and other activities while a disabled pupil or student was attending school or a post-16 institution. The amendment would not cover adult education at all.
It may be helpful if I set the substantial disadvantage trigger in context. The starting point for the Bill was the precedent set by the DDA. We have taken the best of the DDA and applied it to the provision of education. We decided to adopt the substantial disadvantage trigger for the reasonable adjustment duty placed on employers under Part II of the DDA because it was a relatively low trigger for adjustments to be made. That leads to a strong reasonable adjustment duty on schools and post-16 institutions. It will also require schools and post-16 institutions to act in an inclusive way, since they will need to compare the experience of disabled children and students with that of their non-disabled peers in deciding what steps they need to take.
In contrast, the duty to make reasonable adjustments in Part III of the DDA is triggered only if disabled people would find it "impossible or unreasonably difficult" to access the service. There is no comparison with others accessing the service. The disability lobby prefers the "substantial disadvantage" test to the "impossible or unreasonably difficult" test in Part III of the DDA for providers of goods and services.
Under Part II of the DDA, a substantial disadvantage is one that is more than minor or trivial. "Substantial" is not defined in the DDA, but in the code of practice issued under it. The term "substantial" is also used in other parts of the DDA, for example in relation to the definition of disability, and in each case it means more than minor or trivial. We expect the DRC to reflect that and to provide further guidance in the codes of practice that they will produce in respect of these new duties. Research monitoring Part II of the DDA has found that disabled people, employers and tribunals have no difficulties with this test. It appears to be working well and is widely understood.
Removing the word "substantial" in the trigger would require schools and further and higher education institutions to make reasonable adjustments however slight the disadvantage. Even if a disabled person was facing only trivial disadvantage, a school or institution would have to do something about it.
People face many sorts of disadvantages every day. Fortunately, most of them are insignificant and they arise from the sort of problems that any of us face as we go through life. They are minor disadvantages that are part and parcel of everyday life for us all and we put up with them. We are not legislating to overcome mere inconveniences. We are legislating to make sure that schools, colleges and universities help disabled pupils and students where there are real barriers to their taking part in education; real difficulties beyond what any of us might be expected to put up with. Otherwise there would be no end to the potential for dispute and challenge. Schools and colleges could find themselves
We believe we have the balance right and that the Bill will ensure that help is available for disabled pupils and students where and when there really is a need for it. I hope therefore that, having heard what I said, the noble Baroness will feel able to withdraw the amendment.
Lord Lucas: I find it difficult to imagine what kind of discrimination would be trivial or reasonable in the case of admission arrangements. We are talking about a tiny function. Can the Minister give me some examples of what might be a trivial piece of discrimination which should be disregarded but is nonetheless reasonable as part of admission arrangements?
Schools have some strange admission arrangements. I know of one private school which requires pupils to stand on one leg for admission--it knocks the dyslexics out of the running; they find it hard to do. I would not find that reasonable. I believe that to be discrimination. When it comes to admission, I cannot think of anything, however small, that should be in admission arrangements that would disadvantage disabled people. I cannot see that there is anything in that tiny area which it is difficult for a school to adjust so that disabled people are not discriminated against. I would love some practical examples of the sorts of thing that schools should be allowed to do which, if we took "substantial" out, they would not be allowed to do.
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