Disabled learners’ rights

The Equality Act 2010 states a person is disabled if they have a ‘physical or mental impairment’ that has a ‘substantial’ and ‘long term’ negative effect on their ability to carry out normal daily activities.

There isn’t a full list of conditions that qualify as a disability. This is in part because the focus should be on the effect on an individual’s life, rather than the type of impairment, condition or diagnosis. Remember – not all disabilities are visible.  

Your learner doesn’t need a formal diagnosis to be considered disabled. For example, if they are on a waiting list for an assessment but they meet the above definition, they are disabled and are protected under equality law.

Not all children and young people who need extra help with their learning are disabled. Likewise, not all disabled children and young people need extra help with their learning. However, many disabled learners are likely to need some additional support to benefit fully from their education.

If a disabled learner needs extra or different help to fully benefit from their education, they have a right to receive additional support for learning.

Under the United Nations Convention on the Rights of the Child (the UNCRC), disabled children also have the right for their individual needs to be recognised and supported (Article 23).

The Equality Act 2010 also gives children and young people with ‘protected characteristics’ (including disability) special protection from discrimination, harassment and victimisation.

Disabled learners must not be treated less favourably because of their disability. You and your colleagues have responsibilities to make reasonable adjustments and avoid discrimination against disabled learners.

All schools, nurseries and local authorities must make ‘reasonable adjustments’ to avoid putting disabled children and young people at a significant disadvantage.

Reasonable adjustments can include changing the way things are usually done. For example, changing your school uniform policy for a disabled learner with sensory needs negatively affected by the uniform.

Reasonable adjustments can also mean providing aids or services that help a disabled learner be fully involved in school life. For example, providing a sign language interpreter or specialised software to help a child communicate.

When deciding whether an adjustment is ‘reasonable’ in a particular situation, you should consider:

While cost may need to be part of the consideration, it’s important to remember: cost should not be the primary consideration when making decisions about a child or young person’s support . No disabled child or young person, or their family, should ever be asked to pay for a reasonable adjustment.

For case studies and more practical advice about making reasonable adjustments in schools, see Equality Human Rights Commission: Reasonable adjustments for disabled pupils in Scotland.

Schools and nurseries must not discriminate against disabled learners in relation to:

This includes avoiding:

Direct discrimination
Treating a disabled learner less favourably for a reason connected to their disability. For example, saying a young person cannot attend a school trip because they are disabled and would need support to do so.

Indirect discrimination
Doing something that applies to all children and young people in the same way, but that puts disabled learners at a disadvantage. For example, requiring all learners to write their test answers by hand which puts disabled learners with a limb difference who cannot hold a pen at a disadvantage.  

Individual schools and nurseries are not required under equality law to make physical adaptions to their building for an individual child or young person. For example, this means if a child uses a wheelchair, the school is not necessarily expected to build a lift in the school for that learner. The school still need to consider reasonable adjustments to ensure the child can access and benefit from their learning. For example, they may use a temporary ramp, or switch classrooms around so the child can access their subjects on the ground floor.

By law local authorities must have an Accessibility Strategy that sets out their plan to improve disabled access across all of their schools and nurseries. The Strategy must be reviewed at least every three years. You should be able to find a copy on your local authority’s website.

For more information, see the Scottish Government guidance on Accessibility Strategies.