What constitutes a “reasonable adjustment” and does an EHC Plan make a difference?

We are seeing many more queries from schools about reasonable adjustments. As readers will know, the Equality Act 2010 (the EqA 2010) requires schools to make reasonable adjustments (as defined by the EqA 2010) for pupils who have a disability (also defined by the EqA 2010).

These queries often crop up because parents complain that the school has not made reasonable adjustments. Such arrangements can range from relatively minor measures to extensive and costly adjustments.  

If something does constitute a reasonable adjustment, the school has an obligation to provide it and meet the costs. It cannot be passed to the parents.

It is also not uncommon in these scenarios for the pupil to have (or be seeking) an Education and Health Care Plan (EHCP). Again, as readers will know, an EHCP describes what support the local authority says a child needs and the local authority must then provide/pay for that support.

Whether something is a reasonable adjustment is not straightforward and the existence of an EHCP can complicate things. Schools, parents and (as we will see) even the courts have struggled with how a local authority’s obligation to meet support in an EHCP impacts the school’s obligation to make reasonable adjustments for the child.

A case at the First Tier (SEND) Tribunal (FTT) was recently criticised on appeal for (amongst other things) getting muddled on this very question. This briefing summarises the case and its findings and draws out some key tips for schools.

The case

The case considered whether an independent school failed to make reasonable adjustments for and/or discriminated against a disabled nine-year-old pupil. Her diagnoses included ASD and ADHD. Various claims were brought by the parents including the school’s refusal to allow the pupil access to a therapy dog, and failures to fund a 1:1 full time teaching assistant, provide additional training for staff and implement a behaviour plan.  

The school successfully defended the claim at the FTT. The parents appealed to the Upper Tribunal, alleging that the Tribunal had not correctly applied the law. The Upper Tribunal agreed and, among some of the other issues identified, explained that the Tribunal had:

• Failed to follow the step-by-step assessment to determine whether something was a reasonable adjustment or not, and
• Wrongly assessed the inter-relationship between reasonable adjustments and the EHC Plan framework.

Court guidance: how to determine a reasonable adjustment

In summary, the duty to make reasonable adjustments is described in the EqA 2010 as follows:  

• There is a provision, criterion or practice (PCP) in place at the school,
• This PCP puts the disabled pupil at a substantial disadvantage when compared to their non-disabled peers, and
• (Where this is the case) the school must take such steps as is reasonable to have to take to avoid the disadvantage.

OR

• Where the disabled pupil would, but for the provision of an auxiliary aid/service, be put at a substantial disadvantage (as compared with their non-disabled peers) the school should take reasonable steps to provide that auxiliary aid/service.

It is common for parents (and in this case the courts) to focus solely on the question in bold underline, ie “reasonableness” and ignore the other elements of the test. This can sometimes boil down in practice to parents arguing that if the school can do it, it should do it.

Legal obligations for schools: when does the duty for reasonable adjustments apply?

The legal duty only arises when all the following elements are met:

The child is disabled, ie they have physical or mental condition that has a substantial and long-term adverse effect on their day-to-day activities. “Long-term” means has lasted or is likely to last a year or more and “substantial” means more than minor or trivial. In circumstances where the picture is unclear, we would advise schools not to automatically accept that a child is disabled and where possible seek independent expert guidance and legal advice.

An auxiliary aid/service will only be “reasonable adjustment” if, without it, the child would be at a substantial disadvantage because of their disability (when compared to non-disabled pupils). Other measures would only be reasonable adjustments if they help avoid a substantial disadvantage caused to a pupil because of a PCP (and this disadvantage must relate to their disability). For example, the application of a requirement that students use pen and paper to write their exams would put a pupil with a disability impacting their dexterity/ability to write at speed at a substantial disadvantage, and the school should take reasonable steps (for example, giving extra time, providing a laptop) to help them overcome that.

Schools should think through whether the pupil is put at a substantial disadvantage (and again, this means more than minor or trivial, so a relatively low bar) and consider whether the proposed adjustment in fact addresses this, which is not always a given.

Impact of an EHCP?

The appeal court was concerned that the Tribunal seemed to come “very close to saying that because [the pupil] should (or did) have an EHC Plan and the [school] was not named … the [school] was relieved of its duty to make reasonable adjustments.” The Tribunal was also worried that the Tribunal implied that because the school was not a special school and had a mainstream ethos, and the adjustment in question was not in the EHC Plan, that the parents were responsible for paying for it (and not the school). The appeal firmly rejected this.

To give an example, the Tribunal felt access to the therapy dog was not a reasonable adjustment because (among other reasons) it had not been recommended by any expert and it was not in EHCP or her EHC needs assessment.

The appeal court clarified that:

• Schools still have a duty to make reasonable adjustments for a pupil with an EHCP (even if the school is not named).
• Independents schools (regardless of size or the nature of their curriculum) have a duty to make reasonable adjustments.

What the local authority commits to providing in the EHCP is simply one factor to consider when assessing whether a proposed adjustment is reasonable or not. It is not determinative and “in all cases it will be a question of considering whether it is reasonable in all the circumstances in light of the nature and extent of the substantial disadvantage .... in comparison to non-disabled children.” When assessing reasonableness the school should consider:

• Cost of the adjustment,
• How effective it will be (in overcoming the disadvantage identified),
• The school’s resources (which for an independent sector are likely to be greater than a maintained school), and
• The reasons why the child is at the school and the nature and availability of support from the local authority through an EHCP. It could still, in some cases, be reasonable for an independent school to make an adjustment even if it could be provided at a maintained school named in the EHCP, for example, because the school can afford the provision and it would be more disruptive for the child to leave/they would lose access to what the parents are likely to see as the advantages of the private education.

The school will only be relieved of its duty to make an adjustment where the EHCP is operational at the school and the support needed is in place. This is because the child is no longer at a substantial disadvantage, so the duty for the school to make reasonable adjustments does not arise.

Addressing reasonable adjustments with or without an EHCP

Schools should always consider the duty to make reasonable adjustments in respect of disabled pupils, regardless of whether they have an EHC Plan or not. This is a proactive duty.

Assessing the reasonableness of the adjustment should include a consideration of what the EHCP provides (and whether the school is named or not) but this cannot be determinative. For example, because something has not been identified or yet confirmed in the EHCP does not mean it is not reasonable for the school to put it in place (either in the long term or to bridge the gap while the EHCP is pending or the school is waiting for support to come through) and the school should consider the factors above (with regards to the evidence available, including expert evidence) when assessing reasonableness.

Please note this content was originally published in the Summer 2024 edition of the Independent Schools’ Bursars Association (ISBA) termly magazine, “The Bursar’s Review”, and is reproduced with the kind permission of ISBA.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, September 2024