Since September 2002, the Disability Discrimination Act 1995 has been extended (by the Special Educational Needs and Disability Act 2001) to cover discrimination faced by disabled students in schools and colleges.

The provisions apply to all schools, including independent schools and special schools.

Defining disability

With thanks to David Ruebain, education and disability lawyer (England).

First, the definition of disability in the DDA (in other words, which students are covered) is not the same as the definition for SEN. In particular, the DDA covers only those who have 'a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out normal day to day activities'. This definition is considered in detail in guidance produced by the Disability Rights Commission. The DDA also covers those with:

• severe disfigurements
• impairments which are controlled or corrected by the use of medication, prostheses, and aid or otherwise
• progressive symptomatic conditions
• a history of impairment
• cancer, HIV or multiple sclerosis at the point of diagnosis.

However, the DDA does not cover addiction to or dependence on nicotine, tobacco or other non-prescribed drugs or substances; hay fever; or certain mental illnesses which have anti-social consequences. Accordingly, it might be possible for a student to have special educational needs, but not be disabled for the purposes of the DDA, and vice versa (although the majority of disabled students will also have special educational needs).

Protection from discrimination

A student who is disabled is protected from discrimination in two ways:

1. They are entitled not to be treated less favourably than a non-disabled student for a reason relating to their disability without justification
2. They are entitled to have reasonable adjustments made with respect to admission arrangements or in the provision of education and associated services, to prevent them being placed at a substantial disadvantage, unless the refusal to make those adjustments is 'justified'.

Such adjustments may be to policies, practices, or procedures of a school, but generally will not include adjusting premises (such as putting in ramps, lifts etc), nor will they usually include providing additional staff or equipment. (Although these kinds of adjustments are covered in other parts of the DDA, they are expressly excluded from the schools part of the DDA since it is generally intended that additional staff or equipment should be obtained through the SEN route and, at present, it would be too onerous on schools to have an obligation to undertake rebuilding.)

Permitting discrimination

Discrimination is, however, permitted (in other words, lawful) if it is:

• in respect of a permitted form of selection, or
• where it is for reasons which are both material to the circumstances of the particular case and substantial. Guidance on t...