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Blanket policies in schools

Blog 3 of our 6-part Human Rights in SEND series.

Please be aware that this blog series contains difficult and potentially triggering issues.

Catriona Moore is Policy Manager at IPSEA (Independent Provider of Special Education Advice), a legal information charity that provides advice to parents and carers of children with SEND and delivers training on the SEND law framework. She is also the parent of a disabled teenager with complex needs.

Please note, this is a guest blog and views expressed in this blog do not necessarily reflect the views of BIHR.

A blanket policy used by a school is a policy that’s applied in the same way to all pupils. This may sound superficially straightforward and a fair way to do things, but in reality it can put disabled pupils at a disadvantage – not to mention risking being contrary to human rights and equality law.

For example, a school’s ‘healthy snacks’ policy may disadvantage a pupil with diabetes who needs a high-calorie diet. Or a school uniform policy that stipulates children must wear garments made of a particular fabric may disadvantage a pupil with who has eczema or a sensory processing disorder, who can’t tolerate the fabric the school requires.

Disabled children are protected from discrimination at school, whether direct or indirect, under the Equality Act 2010, which prohibits discrimination on the basis of protected characteristics, including disability, in a range of circumstances including education. They are also protected from discrimination by Article 14 of the European Convention on Human Rights (ECHR), which is brought into domestic law in the UK through the Human Rights Act 1998.

Article 14 of the Human Rights Act is clear that children should enjoy their rights without being discriminated against. Schools and local authorities can’t adopt policies or make decisions that treat disabled children differently from children who are not disabled, without a good reason. In other circumstances, Article 14 may require disabled children to be treated differently in order to accommodate their different needs.

The Equality Act 2010 requires schools to make sure that disabled children aren’t treated unfavourably for reasons arising as a consequence of their disability. Under part 6 of the Act, schools must not discriminate in admissions; must ensure all pupils have full access to the education, facilities and services on offer; and must not subject pupils to “any other detriment” – ie any form of disadvantage. “Any other detriment” may include being disciplined for failure to comply with a school’s policies, for example on uniform or behaviour.

Schools are required to take steps to avoid disabled pupils being put at disadvantage as a result of a “provision, criterion or practice” in comparison with pupils who are not disabled (Section 20, Equality Act 2010). They have a duty to make reasonable adjustments – and this is an anticipatory duty – to ensure their pupils can access all the benefits of their education. These protections apply to a school’s policies and practices, as well as to the school environment.

For SEND children and their families, they do not have to choose between the Equality Act and the Human Rights Act; both offer protections to support disabled children. Sometimes the laws need to be raised together. For example, as I share in another BIHR Blog (click here to read) it was the Human Rights Act that reversed the exclusion of some children from the definition of disability in the Equality Act. This means SEND pupils with unmet needs or for whom reasonable adjustments have not been made now have legal protections when they are faced with school exclusions. 

Discipline or behaviour policies are a particular issue for schools, and an area where they need to take care to avoid indirect discrimination against disabled pupils. Blanket behaviour policies, such as a fixed sanction for a particular offence, should not exist. I believe it is discriminatory to set as a behavioural norm or standard something that a child or young person with special educational needs or a disability (SEND) may not be able to achieve as a result of their needs. Schools should be aware that children with a particular disability may have greater difficulty complying with certain rules than their non-disabled peers.

School behaviour policies must state clearly how these will be applied for pupils who have SEND. The fact that a child has a disability does not mean they should never be disciplined, but rather the behaviour and discipline policies should reflect the need to pay extra attention to the underlying causes of their difficulties. Behaviour policies should not simply be about disciplinary measures to achieve desired behavioural outcomes, but should explicitly aim to understand and address underlying causes of children and young people’s behaviour.

A whole school approach must take account of different pupils and their different needs, and a ‘one size’ approach will not work for all children and young people. While an inclusive approach should be non-negotiable, this does not mean treating every child the same. Indeed, treating every child in the same way is setting some children up to fail. This was acknowledged by the 2018 Timpson review of school exclusion, which stated clearly that the way some schools apply sanctions and exclusions has a disproportionate impact on children with SEND.

The bottom line is that individual school policies do not trump the law on human rights and equality for people with protected characteristics. For more information about disability discrimination in schools, visit IPSEA’s website.

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