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It is important to have some understanding of the three different but related issues here: disability as defined by the Equality Act (EA), Special Educational Needs (SEN) and Education Health and Care Plans (EHCP).
It is also important to understand the differences between receiving a diagnosis (something provided by a clinician or other relevant professional) and being recognised as having a disability (which is something that can only be done by a responsible body in the first instance). It is important to remember that it is in no way a requirement to have a diagnosis for it to be recognised that there is a disability according to the EA.
The central conclusion is that, once a school or other responsible body has information that makes it reasonable to believe that a child (or adult) has a disability, they must act according to their duties under the EA - in particular, consideration must be given to what reasonable adjustments need to be put in place. To not do so would be very likely to result in unlawful discrimination. This is because:
Disability is a protected characteristic
It is unlawful for a school to discriminate against an applicant or pupil in relation to: Admissions; The provision of education; Access to any benefit, facility or service; Exclusions; Any other detriment
Unless the substantial disadvantage that a child experiences is overcome by support received under the SEN framework, there remains an obligation under the Act for the school or local authority to make reasonable adjustments.
The existence of other legislative provisions and responsibilities does not necessarily provide a defence in a claim under the Act. Schools are expected to take whatever action is necessary to ensure that they fulfil their responsibilities both under the Act and under any other legislation that applies to them.
As long as the unfavourable treatment is because of something arising as a consequence of the disability, it will be unlawful unless it can be objectively justified, or unless the school did not know, or could not reasonably have been expected to know, that the pupil was disabled.
The required knowledge is of the facts of the pupil’s disability but the school does not also need to realise that those particular facts meet the legal definition of disability.
A school must do all it that can reasonably be expected to do to find out whether a pupil has a disability. What is reasonable will depend on the circumstances. This is an objective assessment.
By acting quickly to identify and put in place reasonable adjustments for disabled pupils, a school can often avoid discrimination arising from disability, although there may be cases in which an adjustment is unrelated to the unfavourable treatment in question.
If a school fails to make an appropriate reasonable adjustment, it is likely to be very difficult for it to argue that unfavourable treatment is justified.
Where a school or other public body indicates that they will not pay regard to an assessment report because it is from a private practitioner, they should be given this advice and asked for a response. The specific questions to ask are whether they consider themselves to be the responsible body and what their determination is of whether the child has a disability. They will generally need to give a detailed answer to the second question, with specific reference to the EA.
If they consider the child to have a disability, they should then provide detailed information about how they intend to meet their obligations under the EA. In particular, will this be done entirely through the SEN framework or will additional reasonable adjustments be required?
If they do not agree that the child has a disability, they will need to give specific reasons why that is their determination: it will not be sufficient for them to say that they need a Local Authority assessment or some such similar thing as the EA does not require this. You may then need to give consideration as to whether you think unlawful discrimination has occurred or is occurring: you may want to seek legal advice on this from an educational or discrimination lawyer, or make use of the variety of other support services such as www.ipsea.org.uk.
New Section
Position Statement on Recognition of Private Assessments and Diagnostic Reports
