Children and Families Act 2014 and the Equality Act 2010

On 11 May 2022 the Upper-Tier Tribunal for Special Educational Needs and Disability confirmed in RB v Calderdale Metropolitan Borough Council (SEN) [2022] UKUT 136 (AAC) that there is a distinction between matters brought under the Children and Families Act 2014 and those brought under the Equality Act 2010.

What is the Children and Families Act 2014?

Part 3 of the Children and Families Act 2014, provides a statutory framework for identifying, assessing and supporting children and young people with special educational needs.

What is the Equality Act 2010?

The Equality Act 2010 protects individuals from discrimination based on protected characteristics, which includes the protected characteristic of disability.

The appeal in RB v Calderdale Metropolitan Borough Council (SEN) [2022] UKUT 136 (AAC)

This appeal was looking at whether Part 3 of the Children and Families Act 2014 and the Equality Act 2010 were inextricably linked. The Upper-Tier Tribunal for Special Educational Needs and Disability was required to determine whether a local authority, or a tribunal stepping into the local authority’s shoes, must consider the reasonable adjustments required for that child or young person under the Equality Act 2010 when considering special educational provision under the Children and Families Act 2014. 

In this case, RB is an 18-year-old who is studying A levels at a mainstream academy. The exams were due to be held within a few weeks of the appeal. RB has been diagnosed with Inflammatory Bowel Disease which is a chronic and lifelong condition. RB also has anxiety and low mood which can stem from the worry of Inflammatory Bowel Disease, which in turn can flare up or exacerbate the condition.

There were no disagreements in terms of RB being disabled as defined in section 6 of the Equality Act 2010.

RB has an EHCP that is maintained by Calderdale MBC. An appeal was lodged to the First Tier Tribunal (Special Educational Needs and Disability) against the contents of the EHCP, notably for the context of this article in relation to special educational provision.

RB requested that in order to reduce RB’s commute and associated fatigue, the EHCP should provide for a short term, private and furnished rented two bedroom flat close to the school in the run up to his A level exams. It was requested that the accommodation be homely and hassle free, and that RB be provided with timely, flexible mental health support considering RB’s anxiety and how this impacted on his ability to remain focused.

The First-Tier Tribunal heard the appeal and ordered amendments to the EHCP but declined the request for provision of accommodation. It found that there had been no evidence that RB would be unable to attend school without this accommodation and that it was not reasonably required. In terms of the mental health support, the tribunal found that RB would be provided with school counselling.

RB lodged an appeal to the Upper Tier Tribunal on the basis that the First-Tier Tribunal should have considered reasonable adjustments under the Equality Act, as part of their decision-making process.

What was the outcome of the appeal?

The Upper Tier Tribunal found that there is undoubtedly, some interface between the Equality Act 2010 and the Children and Families Act 2014, in that there is a shared aim of removing barriers to learning, and also that Section 83(3) of the Children and Families Act 2014 refers to the definition of disability as set out in the Equality Act 2010. 

However, the Upper Tier Tribunal explained that as far as the connection goes. The rationale is that the regimes are entirely different and distinct. One relates to Special Educational Needs and the other to disability discrimination. The Tribunal Judge highlighted how the implementation of provision under the Children and Families Act 2014, is with the local authority under Section 42 and the duty for reasonable adjustments under Section 85 of the Equality Act 2010 is on the responsible body of a school.

The Upper Tier Tribunal also used examples from the Equality and Human Rights Commission’s Technical Guidance on Reasonable Adjustments for Disabled Pupils 2015 to demonstrate the differences:

a)    A disabled pupil may receive support in school solely through the SEN framework:

Example - A disabled pupil has an EHC plan and attends a maintained mainstream secondary school. Through her EHC plan, she receives two hours a week of specialist teaching and uses an electronic note taker in lessons. Because the support that she requires is provided through her EHC plan, the school does not therefore have to make reasonable adjustments by providing these auxiliary aids and services for her (pp7,8).

b)    A disabled pupil may need reasonable adjustments to be made in addition to the special educational provision that he or she is receiving:

Example - An infant school disabled pupil with attention deficit hyperactivity disorder (ADHD), receives some individual teaching assistant support through the SEN framework. He is diagnosed with severe asthma and needs assistance with his nebuliser. Although this is not a special educational need, his asthma is likely to be a disability for the purpose of the Act and so a failure to provide a reasonable adjustment will place him at a substantial disadvantage. The school trains his teaching assistant and she provides him with the assistance that he needs. This would be a reasonable adjustment for the school to make (p8).

c)    Some disabled pupils are not classified as having SEN, but if they are disabled and are suffering a substantial disadvantage, they may still need reasonable adjustments to be made:

Example - A disabled pupil at an infant school has diabetes, and requires daily support with reading blood sugar levels and insulin injections. He is not classified as having SEN and therefore receives no support through the SEN framework.

He is, however, disabled and therefore if the lack of daily support places him at a substantial disadvantage, the school would be under a duty to make the adjustment of providing the support, if it would be reasonable to do so (p8).

If you have any questions at all regarding the information in this blog or if you would like some advice, please contact Thomas Emmett on 01245 453847 or thomas.emmett@birkettlong.co.uk.