Legal Question

Q: I am a parent of two children. My 13 year old non-disabled son has passed the 11 plus exam and is attending the local school, which happens to be a grammar school. I would like my 10 year old daughter, who has learning difficulties, to attend the same school. We believe my daughter will be disadvantaged by the 11 plus test to such an extent that she will fail the assessments. Can we challenge the use of the 11 plus test’s content and marking arrangements (rather than arrangements made around administering them ie making papers available in large print on different coloured paper etc)? Can I challenge the use of the 11 plus test in the admissions process under the Equality Act 2010 on the grounds that it is biased towards non-disabled pupils?

A: The use of selection tests arguably cannot be said to amount to discrimination against disabled students, unless there is evidence that a particular disabled child is put at a disadvantage due to:

• the content of the test;
  the manner in which it is administered; or
  the marking arrangements.

If there is evidence that the tests are biased against disabled candidates, that may give rise to a claim for indirect discrimination on the ground that it puts disabled candidates at a particular disadvantage. It is important to remember however that any discrimination challenge will need to show that a particular individual has suffered a disadvantage as a result of a discriminatory act or practice. It is not enough to claim that disabled individuals are likely to suffer a disadvantage as a result of it.

If a school had taken reasonable adjustments to remedy any disadvantage suffered by disabled candidates in being required to take the test, it may make it harder to argue indirect discrimination.

The duty to take reasonable adjustments means that schools should take pro-active steps to remedy any disadvantage before it is suffered by any disabled pupils.

Once made aware of a disadvantage that may be experienced by a disabled individual, the school would be expected to take reasonable steps to avoid this disadvantage which is likely to vary for each disabled candidate. Reasonable adjustments would normally be made in administering and/or sitting the test rather than its content or marking arrangements. This may include giving the disabled candidate more time to complete the test, providing them with a note taker, or other similar adjustments. It would be more difficult to identify reasonable adjustments that should be made to the content and marking criteria.

If it was clear that there were reasonable adjustments that the school should have made and did not, this may point to its failure to make reasonable adjustments. Where a candidate has dyslexia, it is reasonable that they should not lose marks due to this.

Ultimately, schools are not required to make any adjustments that they do not have the financial resources to make, only what is ‘reasonable’ in the circumstances.

If your child is disabled and you are concerned that they will struggle in future admission tests, you should tell the admissions administrator of your child’s disability in advance, ask that reasonable adjustments be made for your child and explain what those should be. Evidence of your child’s disability will be required to support your request, for example medical reports or any evidence from her current school. If you are concerned that reasonable adjustments have not been made, you should report this immediately to the school and admissions authority. You can also bring a challenge via the admissions appeals process based on discrimination principles.

If you are concerned that your child may have been subject to discrimination by a school, please contact education law specialists Simpson Millar LLP on 0808 129 3320 or online.

Serena Fassò

Serena is a Solicitor with Simpson Millar and specialises in Education, Community Care and Public Law.