Legal Question

“In my role as Senior Development Officer for Goalball UK, I have been approached by Blind pupils attending different mainstream secondary schools, expressing their dissatisfaction at being excluded from participating in Physical Education (PE) lessons. These pupils want to take PE as a GCSE subject, with ambition to become PE teachers, and are actively involved in community sport. The pupils are also excluded from participating in their schools’ sports days, which denies them opportunity to represent their schools so they can feel valued and have a sense of belonging.

Their parents have raised concerns with the schools about their children’s exclusion from PE lessons. The schools have responded saying they are low on staffing levels and feel it would be too dangerous to include Blind pupils in uncontrolled physical activities. They argue it would be too challenging for Blind pupils to participate without any risk, and they are told to use the time to do homework or develop their Braille skills. 

Unsurprisingly, the pupils and their parents are dissatisfied with their school’s response to their exclusion from PE, a curriculum subject. What rights do they have to challenge the school’s action to remove their children from PE lessons?”

Having a significant visual impairment is a protected characteristic under the Equality Act 2010. This means that there is a duty on schools not to discriminate against students who are Blind.

There are numerous protections under the Equality Act but the most relevant to this situation is the duty to ensure that those with a disability do not suffer discrimination ‘arising from’ their disability.

A disability is defined under the Act as:

“P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”

Being Blind clearly meets this definition.

Section 15 of the Act prohibits discrimination arising from disability which it defines as:

“A person (A) discriminates against a disabled person (B) if—

“(a)A treats B unfavourably because of something arising in consequence of B’s disability, and

(b)A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”

In the situation set out above, it could be interpreted that schools are not treating pupils unfavourably simply because they are Blind but instead because of the additional risk which arises from Blind pupils doing sport. The discrimination therefore arises from the consequences of the disability.

As can be seen above, a school should not discriminate in this way unless it can show that the treatment (the ban from sports) is a proportionate means of achieving a legitimate aim.

The schools in question have stated that safety is their aim and it probably would not be disputed that this is a legitimate aim. The question is therefore whether the ban is proportionate to maintaining this aim.

In considering whether a ban is proportionate, it should be considered whether reasonable adjustments can be made. The provision of additional staff and/or changes to the way the lessons or sports days are managed for example. Schools are under a duty to make reasonable adjustments and can never show that discrimination is a proportionate means of achieving a legitimate aim in circumstances where they have failed to do make reasonable adjustments. What is reasonable is dependent on specific facts. If schools show that the adjustments would be of significant cost and they simply cannot afford them then this might not be considered reasonable but they would have to demonstrate this clearly and that they have considered other lower cost alternatives where available.

In addition, most Blind students will have or should have an Education, Health and Care plan. Where support is needed but costs more than what a mainstream school can be reasonably be expected to cover from within their existing resources then provision should be specified in that plan and funded by the Local Authority. This means that, in reality, children who are Blind should participate in sports and it is simply a question of who pays for the cost of the additional support needed to ensure accessibility and safety of the pupils when participating. This should either be the school or the Local Authority but the answer cannot be a ban on sports for Blind pupils.

Parents of children in this situation may need to look at changes to their child’s EHCP plan and/or consider a disability discrimination claim. Advice on the most appropriate option should be sought as this may be different for different people.