Covid-19, disability discrimination and the return to school

Is your school discriminating against pupils with disabilities because of Covid-19 risks?

On 8 September, the Government published its updated guidance on the full opening of special schools alongside its guidance on the full opening of mainstream schools. The guidance focuses on actions to minimise the risk of transmission in a special school setting, general operational guidance and contingency planning in the case of a local outbreak. The guidance applies to schools and academies.

The special schools guidance includes a link to specific guidance on safe working with children with complex medical needs which was published on 21 July. This includes guidance for schools who commonly carry out Aerosol Generating Procedures (AGPs), such as suctioning, as part of their care for pupils who have tracheostomies. This advises that school staff carrying out AGPs should: wear specified personal protective equipment (PPE), including a FFP2/3 respirator, gloves, a long sleeve fluid repellent gown and eye protection; carry out these procedures in a separate designated room with the doors closed and any windows open; clean all surfaces after the AGP; and then ventilate the room, ideally for one hour before it is used again. Where this is not possible, individual risk assessments should be carried out by the school. The guidance makes clear that, in all cases, AGPs should only take place in a room where there are no other pupils or staff. 

School leaders, parents and the National Tracheostomy Safety Project have expressed concern that this guidance is leading to non-symptomatic children with tracheostomies being barred from attending school where it is not possible for a room to be designated for this purpose, or for the number of pupils requiring AGPs at one school to be accommodated in this way.

In contrast, the advice for schools working with non-symptomatic pupils who are likely to engage in behaviours such as biting, licking, kissing or spitting which could increase the risk of droplet transmission, is to continue to work with these pupils in the same way as before, using PPE in line with normal routines. However, the guidance states that risk assessments in such cases should be reviewed and updated and that increased cleaning of surfaces and objects will be required.

Pupils with tracheostomies or with conditions requiring AGPs to be administered at school are very likely to be disabled for the purposes of the Equality Act 2010. Schools should therefore be aware of the potential risk of discrimination claims being brought in the First-tier Special Educational Needs and Disability Tribunal where decisions are made to ask pupils not to attend school or to attend part-time because of this guidance. 

The risk of claims

Discrimination claims may arise where a pupil with a disability is treated unfavourably (for example not being allowed to return to school full time) because of something arising from their disability (such as the requirement to carry out suctioning).

Such unfavourable treatment can however be justified if the school can show that it is a proportionate means of achieving a legitimate aim. The legitimate aims here are likely to refer to operating a safe educational institution for the majority of pupils, ensuring the safety of a pupil with a disability (both in the way in which they can be supported in school and their exposure to the risk of Covid-19 infection) and ensuring a safe workplace for staff. The key question will be whether the step of asking the pupil not to attend is a necessary and appropriate way of achieving those aims, taking into account the impact of the decision on the pupil’s education and/or wellbeing. Schools should therefore explore whether there is a less discriminatory way of achieving their aims. For example, where they cannot make safe arrangements for the pupil to be in school full time, schools should consider offering part-time in-school provision alongside the required support for educational provision at home. Schools should also have rigorous supporting documents to evidence their assessment of the risks of AGPs to other pupils and staff. Risk assessments should of course take into account the context (including but not limited to Government and Public Health England guidance), and the facilities and resources of the school before asking a pupil not to attend because AGPs cannot be safely carried out at school. 

Schools may also face claims that they have failed in their duty to make reasonable adjustments for a pupil with a disability if their policy on carrying out AGPs, a physical feature of the school building or the lack of an auxiliary aid (including a service such as carrying out AGPs) disadvantages a pupil with a disability in comparison to a pupil without the disability.

One key question if a reasonable adjustments claim is brought will be whether it was reasonable for the school to make additional provision to accommodate a pupil who requires an AGP given the current safety guidance. This will depend on the space and resources available to the school. If a school simply does not have the resources to designate sufficient rooms (or to make alternative temporary provision) to comply with the guidance for all pupils requiring AGPs, then it is possible that the school would be able to succeed in arguing that the adjustment was not reasonable and in justifying the unfavourable treatment of not allowing a pupil to return. However, the school would be expected to make what other adjustments it reasonably could to enable the pupil to overcome the disadvantage. This will include alternative educational provision and/or part-time arrangements.

It is important to note that schools cannot delegate their responsibility for health and safety and rely on simply following Government guidance to comply with their duty of care to pupils or staff. Without a specific assessment of particular health and safety risks, any assumptions that disadvantage a pupil with a disability will increase the risk of a successful discrimination claim.  Schools must take into account their duties under the Equality Act, the specific circumstances arising at different school sites, and the risks for different staff and pupils associated with particular procedures or activities. On this subject, school leaders may be interested in our previous article “Covid-19 – are schools and academy trusts required to comply with DfE guidance on a phased wider opening?” (see link here).