A student who has a disability must be treated fairly and without discrimination by school authorities regarding the provision of services provided.
If the student has a disability, there is a positive duty on the school to provide the student with what is termed reasonable accommodation, and ensure that access to any course, facility or benefit are afforded to students with and without a disability alike.
Discrimination concerns being treated less favourably than another on one of the grounds specified in the Equal Status Act of 2000, in this post the disability ground.
The definition of disability under the Equal Status act is broad and is described as meaning:
( a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
( b) the presence in the body of organisms causing, or likely o cause, chronic disease or illness,
( c) the malfunction, malformation or disfigurement of a part of a person’s body,
( d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
( e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.
Many forms of illness, sickness, learning difficulties, disabilities will attract the protection of the Equal Status Acts definition of a disability.
Under S.7 of the Equal Status Act 2000 includes a school within its definition and states:
|An educational establishment shall not discriminate in relation to—|
|(a) the admission or the terms or conditions of admission of a person as a student to the establishment,|
|(b) the access of a student to any course, facility or benefit provided by the establishment,|
|(c) any other term or condition of participation in the establishment by a student, or|
|(d) the expulsion of a student from the establishment or any other sanction against the student.|
What is Discrimination ?
Discrimination is defined by the Equal Status Act as:
Discrimination shall be taken to occur where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B), in this Act referred to as the ‘discriminatory grounds’.
Discrimination under the Disability Ground
Section 3(2) of the Act provides that:
“(2) As between any two persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are:
(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”).
Burden of Proof
The burden of proof on cases of this nature is firstly on the applicant.
It was stated in M. v. S.H.B  ELR 20 that “A claimant must prove, on the balance of probabilities the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.
It will be necessary for an applicant to firstly prove they have a disability to be covered by this ground in the act.
It is then necessary for the applicant student to show he/she was not afforded special treatment by the school and/or that this treatment was less favourable than the treatment afforded to another student without a disability.
There must be a nexus between the schools less favourable treatment of the student and the student’s disability.
Reasonable Accomodation for Students
There is a duty on the school to provide a student with a disability with what is termed reasonable accommodation.
If reasonable accommodation is not provided by the school to the student, they could be exposing themselves to a claim under the Equal Status act for discrimination.
The law states the following:
“4.—(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.
(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.
(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.”
What can be included as reasonable accommodation can vary from circumstance to circumstance, but it can involve things that are of no cost and simply afford the person with a bit of help they require.
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