2005 No. 1117 (N.I. 6)
The Special Educational Needs and Disability (Northern Ireland) Order 2005
6th April 2005

PART I INTRODUCTORY

1 Title and commencement
1 This Order may be cited as the Special Educational Needs and Disability (Northern Ireland) Order 2005.
2 The following provisions of this Order come into operation on such day or days as the Department of Education may appoint by order—
(a) Part II, together with Schedule 1;
(b) Chapter I of Part III, together with Part I of Schedule 2;
(c) Chapter III of Part III;
(d) Articles 43 to 48, so far as relating to Chapters I and III of Part III;
(e) Article 50(1), together with Schedule 5;
(f) Article 50(2), together with Schedule 6, except so far as relating to the Disability Discrimination Act 1995 (c.50).
Partly exercised by S.R. 2005/336, S.R. 2005/337, {S.R. 2007/25}
3 The following provisions of this Order come into operation on such day or days as the Department for Employment and Learning may appoint by order—
(a) Chapter II of Part III, together with Part II of Schedule 2 and Schedule 3;
(b) Articles 43 to 48, so far as relating to Chapter II of Part III; and
(c) Article 50(2), together with Schedule 6, so far as relating to the Disability Discrimination Act 1995 (c.50).
4 An order bringing into operation any provision of Article 30 may, in particular, include provision for the duty imposed by Article 30(1) to have effect with such modifications as may be specified in the order for a period which ends—
(a) on a date so specified; or
(b) on the making by the Department for Employment and Learning of an order bringing the period to an end.

2 Interpretation
1 The Interpretation Act (Northern Ireland) 1954 (c.33) applies to this Order as it applies to an Act of the Assembly.
2 In this Order—
“act” includes deliberate omission;
“employment” has the same meaning as in the 1995 Act, and related expressions shall be construed accordingly;
“Minister of the Crown” includes the Treasury;
“premises” includes land of any kind;
“statutory provision” has the meaning given by section 1(f) of the Interpretation Act (Northern Ireland) 1954 (c.33);
“the 1986 Order” means the Education and Libraries (Northern Ireland) Order 1986 (NI 3);
“the 1995 Act” means the Disability Discrimination Act 1995 (c. 50);
“the 1996 Order” means the Education (Northern Ireland) Order 1996 (NI 1).
3 Section 1 of, and Schedule 1 to, the 1995 Act and any regulations thereunder (meaning of “disability” and “disabled person”) apply for the purposes of this Order as they apply for the purposes of that Act.

PART II SPECIAL EDUCATIONAL NEEDS

Education in ordinary schools

3 Education in ordinary schools of children with special educational needs
1 In the 1996 Order for Article 7 substitute—

“7 Duty to educate children with special educational needs in ordinary schools
1 This Article applies to a child with special educational needs who should be educated in a grant-aided school.
2 If no statement is maintained under Article 16 for the child, he shall be educated in an ordinary school.
3 If a statement is maintained under Article 16 for the child, he shall be educated in an ordinary school unless that is incompatible with—
(a) the wishes of his parent, or
(b) the provision of efficient education for other children.

7A Education otherwise than in ordinary schools
1 Article 7(2) does not require a child to be educated in an ordinary school during any period in which—
(a) he is admitted to a special school for the purposes of an assessment under Article 15 of his educational needs and his admission to that school is with the agreement of—
(i) the board;
(ii) the Board of Governors of the school;
(iii) his parent; and
(iv) any person whose advice is to be sought in accordance with regulations made under paragraph 2 of Schedule 1;
(b) he remains admitted to a special school, in prescribed circumstances, following an assessment under Article 15 at that school;
(c) he is admitted to a special school, following a change in his circumstances, with the agreement of—
(i) the board;
(ii) the Board of Governors of the school; and
(iii) his parent.
2 Article 7 does not affect the operation of—
(a) Article 10; or
(b) paragraph 5 of Schedule 2.
3 If a board decides—
(a) to make a statement for a child under Article 16, but
(b) not to name in the statement the school for which a parent has expressed a preference under paragraph 5 of Schedule 2,
it shall, in making the statement, comply with Article 7(3).
4 A board may, in relation to its ordinary controlled schools taken as a whole, rely on the exception in Article 7(3)(b) only if it shows that there are no reasonable steps that it could take to prevent the incompatibility.
5 A board or a Board of Governors may, in relation to a particular ordinary school, rely on the exception in Article 7(3)(b) only if it shows that there are no reasonable steps that either of them could take to prevent the incompatibility.
6 The exception in Article 7(3)(b) does not permit a Board of Governors to fail to comply with the duty imposed by Article 16(5)(b).
7 Boards and Boards of Governors of grant-aided schools shall have regard to guidance about Article 7 and this Article issued by the Department.
8 That guidance shall, in particular, relate to steps which may, or may not, be regarded as reasonable for the purposes of paragraphs (4) and (5).”

.

General duties of boards

4 Advice and information for parents
In the 1996 Order, after Article 21 insert—

“General duties of boards

21A Advice and information for parents
1 A board shall arrange for the parent of any child in its area with special educational needs to be provided with advice and information about matters relating to those needs.
2 In making the arrangements, the board shall have regard to any guidance given by the Department.
3 The board shall take such steps as it considers appropriate for making the services provided under paragraph (1) known to—
(a) the parents of children in its area;
(b) the principals and Boards of Governors of grant-aided schools in its area;
(c) the principals and proprietors of independent schools in its area; and
(d) such other persons as it considers appropriate.”

5 Resolution of disputes
In the 1996 Order after Article 21A insert—

“21B Resolution of disputes
1 A board shall make arrangements with a view to avoiding or resolving disagreements between boards or Boards of Governors of grant-aided schools (on the one hand) and parents of children in its area (on the other) about the exercise by boards or Boards of Governors of functions under this Part.
2 A board shall also make arrangements with a view to avoiding or resolving, in each relevant school, disagreements between the parents of a child who is a registered pupil at the school and has special educational needs and the Board of Governors or proprietor of the school about the special educational provision made for that child.
3 In paragraph (2) “relevant school” means—
(a) a grant-aided school;
(b) an independent school which is named in the statement maintained for the child under Article 16.
4 The arrangements under paragraphs (1) and (2) shall provide for the appointment of independent persons with the function of facilitating the avoidance or resolution of such disagreements.
5 In making the arrangements, the board shall have regard to any guidance given by the Department.
6 The board shall take such steps as it considers appropriate for making the arrangements made under paragraphs (1) and (2) known to—
(a) the parents of children in its area;
(b) the principals and Boards of Governors of grant-aided schools in its area;
(c) the principals and proprietors of independent schools in its area; and
(d) such other persons as it considers appropriate.
7 The arrangements do not affect the entitlement of a parent to appeal to the Tribunal.”

.

6 Compliance with orders of Tribunal
In the 1996 Order after Article 23 insert—

“23A Compliance with orders
If the Tribunal makes an order, the board concerned must comply with the order before the end of the prescribed period beginning with the date on which it is made.”

.

Appeals

7 Appeal against content of statement
1 Article 18 of the 1996 Order (appeal against content of statement) is amended as follows.
2 For paragraphs (1) and (2)—

“1 The parent of a child for whom a board maintains a statement under Article 16 may appeal to the Tribunal—
(a) when the statement is first made,
(b) if an amendment is made to the statement, or
(c) if, after conducting an assessment under Article 15, the board determines not to amend the statement.
1A An appeal under this Article may be against any of the following—
(a) the description in the statement of the board's assessment of the child's special educational needs,
(b) the special educational provision specified in the statement (including the name of a school so specified),
(c) if no school is specified in the statement, that fact.
2 Paragraph (1)(b) does not apply where the amendment is made in pursuance of—
(a) paragraph 11 (change of named school at request of parent) or 13(4)(b) (amendment ordered by Tribunal) of Schedule 2; or
(b) directions under paragraph 2 of Schedule 13 to the 1986 Order (revocation of school attendance order);
and paragraph (1)(c) does not apply to a determination made following the service of notice under paragraph 3 (amendment by board) of Schedule 2.”

.
3 In paragraph (4)(a) for “paragraph 3” substitute “ paragraph 5 ”.

8 Unopposed appeals
In the 1996 Order after Article 18 insert—

“18A Unopposed appeals
1 This Article applies if—
(a) the parent of a child has appealed to the Tribunal under Article 17, 20 or 20A or paragraph 11(3) of Schedule 2 against a decision of a board, and
(b) the board notifies the Tribunal that it has determined that it will not, or will no longer, oppose the appeal.
2 The appeal is to be treated as having been determined in favour of the appellant.
3 If an appeal is treated as determined in favour of the appellant as a result of paragraph (2), the Tribunal is not required to make any order.
4 Before the end of the prescribed period, the board shall—
(a) in the case of an appeal under Article 17, make a statement under Article 16 of the child's educational needs,
(b) in the case of an appeal under Article 20 or 20A, make an assessment of the child's educational needs,
(c) in the case of an appeal under paragraph 11(3) of Schedule 2 against a determination of the board not to comply with the parent's request, comply with the request.
5 A board required by paragraph (4)(a) to make a statement under Article 16 shall maintain the statement under that Article.”

.

Identification and assessment of educational needs

9 Duty to inform parent where special educational provision made
In the 1996 Order after Article 8 insert—

“8A Duty to inform parent where special educational provision made
If—
(a) a child for whom no statement is maintained under Article 16 is a registered pupil at an ordinary grant-aided school;
(b) special educational provision is made for him at the school because it is considered that he has special educational needs; and
(c) his parent has not previously been informed under this Article of special educational provision made for him at the school,
the Board of Governors of the school shall inform the child's parent that special educational provision is being made for him at the school because it is considered that he has special educational needs.”

.

10 Review or assessment of educational needs at request of responsible body
After Article 20 of the 1996 Order insert—

“20A Review or assessment of educational needs at request of responsible body
1 This Article applies if—
(a) a child is a registered pupil at a school (whether or not he is a child in respect of whom a statement is maintained under Article 16),
(b) the responsible body asks the board to arrange for an assessment to be made in respect of him under Article 15, and
(c) such an assessment has not been made within the period of six months ending with the date on which the request is made.
2 If it is necessary for the board to make an assessment or further assessment under Article 15, it shall comply with the request.
3 Before deciding whether to comply with the request, the board shall serve on the child's parent a notice informing him—
(a) that it is considering whether to make an assessment of the child's educational needs,
(b) of the procedure to be followed in making the assessment,
(c) of the name of an officer of the board from whom further information may be obtained, and
(d) of the parent's right to make representations, and submit written evidence, to the board before the end of the period specified in the notice ( “the specified period”).
4 The specified period shall not be less than 29 days beginning with the date on which the notice is served.
5 The board may not decide whether to comply with the request until the specified period has expired.
6 The board shall take into account any representations made, and any evidence submitted, to it in response to the notice under paragraph (3).
7 If, as a result of this Article, a board decides to make an assessment under Article 15, it shall give written notice to the child's parent and to the responsible body which made the request, of the decision and of the board's reasons for making it.
8 If, after serving a notice under paragraph (3), the board decides not to assess the educational needs of the child—
(a) it shall give written notice of the decision and of the board's reasons for making it to his parent and to the responsible body which made the request, and
(b) the parent may appeal to the Tribunal against the decision.
9 A notice given under paragraph (8)(a) to the child's parent shall—
(a) inform the parent of his right to appeal, and
(b) contain such other information (if any) as may be prescribed.
10 On an appeal under paragraph (8) the Tribunal may—
(a) dismiss it, or
(b) order the board to arrange for an assessment to be made in respect of the child under Article 15.
11 In this Article “the responsible body” means—
(a) in relation to a grant-aided school, the Board of Governors,
(b) in relation to an independent school, the proprietor.”

.

11 Duty to specify named school in statement
In Article 16 of the 1996 Order (statement of special educational needs), after paragraph (4) insert—

“4A Paragraph (4)(b) does not require the name of a school or institution to be specified if the child's parent has made suitable arrangements for the special educational provision specified in the statement to be made for the child.”

.

Statements of special educational needs

12 Statements of special educational needs
For Schedule 2 to the 1996 Order (making and maintenance of statements under Article 16) substitute the Schedule set out in Schedule 1 to this Order.
Word in art. 12 substituted (1.8.2006) by Education (Northern Ireland) Order 2006 (S.I. 2006/1915 (N.I. 11)), arts. 1(2), 44(1), Sch. 2 para. 21

PART III DISABILITY DISCRIMINATION IN EDUCATION

CHAPTER I SCHOOLS

Interpretation of this Chapter

13 Interpretation of this Chapter
1 In this Chapter—
“accessibility strategy” has the meaning given in Article 17;
“accessibility plan” has the meanings given in Article 18;
“the Department” means the Department of Education;
“disabled pupil” means a pupil who is a disabled person;
“prescribed” means, except in Article 23, prescribed by regulations made by the Department;
“responsible body” has (subject to Article 20(5)) the meaning given in Article 14(5);
“the Tribunal” has the meaning given in Article 21(2).
2 In this Chapter the following have the meaning given in Article 2(2) of the 1986 Order—
...
“Board of Governors”;
“grant-aided school”;
“independent school”;
“parent”;
“proprietor”;
“pupil”; and
“school”.
3 The Department may by regulations prescribe services which are, or services which are not, to be regarded for the purposes of Articles 14(2), 17 and 18 as being—
(a) education; or
(b) an associated service.
Words in art. 13(1) substituted (2.6.2021) by The Departments (Transfer of Functions) Order (Northern Ireland) 2021 (S.R. 2021/114), art. 1(2), Sch. para. 3(1) (with art. 2(2)(a)(b))
Word in art. 13(2) repealed (1.4.2015) by Education Act (Northern Ireland) 2014 (c. 12), Sch. 4 (with Sch. 2 para. 4(3)); S.R. 2015/35, art. 2(b)

Duties of responsible bodies

14 Discrimination against disabled pupils and prospective pupils
1 It is unlawful for the body responsible for a school to discriminate against a disabled person—
(a) in the arrangements it makes for determining admission to the school as a pupil;
(b) in the terms on which it offers to admit him to the school as a pupil; or
(c) by refusing or deliberately omitting to accept an application for his admission to the school as a pupil.
2 It is unlawful for the body responsible for a school to discriminate against a disabled pupil in the education or associated services provided for, or offered to, pupils at the school by that body.
3 It is unlawful for the body responsible for a school to discriminate against a disabled pupil by suspending or expelling him from the school.
4 In the case of an act which constitutes discrimination by virtue of Article 43, this Article also applies to discrimination against a person who is not disabled.
5 For the purposes of this Chapter the body responsible for a school is—
(a) in the case of a grant-aided school, the board ... or the Board of Governors, according to which has the function in question;
Words in art. 14(5)(a) repealed (1.4.2015) by Education Act (Northern Ireland) 2014 (c. 12), Sch. 4 (with Sch. 2 para. 4(3)); S.R. 2015/35, art. 2(b)
(b) in relation to an independent school, the proprietor;
and in this Chapter that body is referred to as the “responsible body”.

15 Meaning of “discrimination”
1 For the purposes of Article 14, a responsible body discriminates against a disabled person if—
(a) for a reason which relates to his disability, it treats him less favourably than it treats or would treat others to whom that reason does not or would not apply; and
(b) it cannot show that the treatment in question is justified.
2 For the purposes of Article 14, a responsible body also discriminates against a disabled person if—
(a) it fails, to his detriment, to comply with Article 16; and
(b) it cannot show that its failure to comply is justified.
3 In relation to a failure to take a particular step, a responsible body does not discriminate against a person if it shows—
(a) that, at the time in question, it did not know and could not reasonably have been expected to know, that he was disabled; and
(b) that its failure to take the step was attributable to that lack of knowledge.
4 The taking of a particular step by a responsible body in relation to a person does not amount to less favourable treatment if it shows that at the time in question it did not know, and could not reasonably have been expected to know, that he was disabled.
5 Paragraphs (6) to (8) apply in determining whether, for the purposes of this Article—
(a) less favourable treatment of a person, or
(b) failure to comply with Article 16,
is justified.
6 Less favourable treatment of a person is justified if it is the result of —
(a) the application of the admission criteria drawn up for a grant-aided school under Article 16(1) of the Education (Northern Ireland) Order 1997 (NI 5) or Article 32(1) of the Education (Northern Ireland) Order 1998 (NI 13); or
(b) any arrangements which make provision for any or all of the pupils of an independent school to be selected by reference to general or special ability or aptitude, with a view to admitting only pupils of high ability or aptitude.
7 Otherwise, less favourable treatment, or a failure to comply with Article 16, is justified only if the reason for it is both material to the circumstances of the particular case and substantial.
8 If, in a case falling within paragraph (1)—
(a) the responsible body is under a duty imposed by Article 16 in relation to the disabled person, but
(b) it fails without justification to comply with that duty,
its treatment of that person cannot be justified under paragraph (7) unless that treatment would have been justified even if it had complied with that duty.

16 Disabled pupils not to be substantially disadvantaged
1 The responsible body for a school shall take such steps as it is reasonable for it to have to take to ensure that—
(a) in relation to the arrangements it makes for determining the admission of pupils to the school, disabled persons are not placed at a substantial disadvantage in comparison with persons who are not disabled; and
(b) in relation to education and associated services provided for, or offered to, pupils at the school by it, disabled pupils are not placed at a substantial disadvantage in comparison with pupils who are not disabled.
2 That does not require the responsible body to—
(a) remove or alter a physical feature (for example, one arising from the design or construction of the school premises or the location of resources); or
(b) provide auxiliary aids or services.
3 The Department may by regulations make provision, for the purposes of this Article—
(a) as to circumstances in which it is reasonable for a responsible body to have to take steps of a prescribed description;
(b) as to steps which it is always reasonable for a responsible body to have to take;
(c) as to circumstances in which it is not reasonable for a responsible body to have to take steps of a prescribed description;
(d) as to steps which it is never reasonable for a responsible body to have to take.
Words in art. 16(3) substituted (2.6.2021) by The Departments (Transfer of Functions) Order (Northern Ireland) 2021 (S.R. 2021/114), art. 1(2), Sch. para. 3(2) (with art. 2(2)(a)(b))
4 In considering whether it is reasonable for it to have to take a particular step in order to comply with its duty under paragraph (1), a responsible body shall have regard to any relevant provisions of a code of practice issued under section 54A of the 1995 Act.
5 Paragraph (6) applies if, in relation to a person, a confidentiality request has been made of which a responsible body is aware.
6 In determining whether it is reasonable for the responsible body to have to take a particular step in relation to that person in order to comply with its duty under paragraph (1), regard shall be had to the extent to which taking the step in question is consistent with compliance with that request.
7 “Confidentiality request” means a request which asks for the nature, or asks for the existence, of a disabled person's disability to be treated as confidential and which satisfies either of the following conditions—
(a) it is made by that person's parent; or
(b) it is made by that person himself and the responsible body reasonably believes that he has sufficient understanding of the nature of the request and of its effect.
8 This Article imposes duties only for the purpose of determining whether a responsible body has discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such.

Accessibility strategies and plans

17 Accessibility strategies of board
1 Each board shall prepare, in relation to controlled schools under its management—
(a) an accessibility strategy;
(b) further such strategies at such times as may be prescribed.
2 An accessibility strategy is a strategy for, over a prescribed period—
(a) increasing the extent to which disabled pupils can participate in the schools' curriculums;
(b) improving the physical environment of the schools for the purpose of increasing the extent to which disabled pupils are able to take advantage of education and associated services provided or offered by the schools; and
(c) improving the delivery to disabled pupils—
(i) within a reasonable time, and
(ii) in ways which are determined after taking account of their disabilities and any preferences expressed by them or their parents,
of information which is provided in writing for pupils who are not disabled.
3 In preparing its accessibility strategy, a board shall have regard to—
(a) the need to allocate adequate resources for implementing the strategy; and
(b) any guidance issued by the Department as to—
(i) the content of an accessibility strategy;
(ii) the form in which it is to be produced; and
(iii) the persons to be consulted in its preparation.
4 An accessibility strategy shall be in writing.
5 Each board shall—
(a) keep its accessibility strategy under review during the period to which it relates and, if necessary, revise it; and
(b) have regard to any guidance issued by the Department as to compliance with the requirements of sub-paragraph (a).
6 It is the duty of each board to implement its accessibility strategy.
7 A board shall—
(a) if asked to do so by the Department, give to the Department a copy of its accessibility strategy;
(b) if asked to do so by any other person, make a copy of its accessibility strategy available for inspection at such reasonable times as it may determine.
8 In this Article “disabled pupil”, in relation to a school, includes a disabled person who may be admitted to the school as a pupil.

18 Accessibility plans for schools
1 The Board of Governors of a grant-aided school and the proprietor of an independent school shall prepare—
(a) an accessibility plan for the school;
(b) further such plans at such times as may be prescribed.
2 An accessibility plan for a school is a plan for, over a prescribed period—
(a) increasing the extent to which disabled pupils can participate in the school's curriculum;
(b) improving the physical environment of the school for the purpose of increasing the extent to which disabled pupils are able to take advantage of education and associated services provided or offered by the school; and
(c) improving the delivery to disabled pupils—
(i) within a reasonable time, and
(ii) in ways which are determined after taking account of their disabilities and any preferences expressed by them or their parents,
of information which is provided in writing for pupils who are not disabled.
3 In preparing an accessibility plan, the Board of Governors or proprietor shall have regard to the need to allocate adequate resources for implementing the plan.
4 An accessibility plan shall be in writing.
5 During the period to which the plan relates, the Board of Governors or proprietor shall keep the accessibility plan under review and, if necessary, revise it.
6 It is the duty of the Board of Governors or proprietor to implement the accessibility plan.
7 An inspection of a school under Article 102 of the 1986 Order may extend to the performance by the Board of Governors or proprietor of functions in relation to the preparation, publication, review, revision and implementation of an accessibility plan for the school.
8 The annual report for a grant-aided school prepared under Article 125 of the Education Reform (Northern Ireland) Order 1989 (NI 20) shall include information as to—
(a) the arrangements for the admission of disabled persons as pupils at the school,
(b) the steps taken to prevent disabled pupils from being treated less favourably than other pupils,
(c) the facilities provided to assist access to the school by disabled pupils, and
(d) the accessibility plan for the school.
9 The proprietor of an independent school shall—
(a) if asked to do so by the Department, give a copy of his accessibility plan to the Department;
(b) if asked to do so by any other person, make a copy of his accessibility plan available for inspection at such reasonable times as he may determine.
10 In this Article “disabled pupil” includes a disabled person who may be admitted to the school as a pupil.

Residual duty of boards

19 Duty of boards not to discriminate
1 This Article applies to the functions of a board under—
(a) the 1986 Order (except Article 37 and Part VII);
(b) the Education Reform (Northern Ireland) Order 1989 (NI 20);
(c) the Education and Libraries (Northern Ireland) Order 1993 (NI 12);
(d) the 1996 Order;
(e) the Education (Northern Ireland) Order 1997 (NI 5);
(f) the Education (Northern Ireland) Order 1998 (NI 13);
(g) the Education and Libraries (Northern Ireland) Order 2003 (NI 12).
(h) the Education Act (Northern Ireland) 2014.
Art. 19(h) added (1.4.2015) by Education Act (Northern Ireland) 2014 (c. 12), Sch. 3 para. 24(2) (with Sch. 2 para. 4(3)); S.R. 2015/35, art. 2(b)
2 But it does not apply to any prescribed function.
3 In discharging a function to which this Article applies, it is unlawful for a board to discriminate against—
(a) a disabled pupil; or
(b) a disabled person who may be admitted to a school as a pupil.
4 But an act done in the discharge of a function to which this Article applies is unlawful as a result of paragraph (3) only if no other provision of this Chapter makes that act unlawful.
5 In the case of an act which constitutes discrimination by virtue of Article 43, this Article also applies to discrimination against a person who is not disabled.

20 Residual duty: supplementary provisions
1 Article 15 applies for the purposes of Article 19 as it applies for the purposes of Article 14 with the following modifications—
(a) references to a responsible body are to be read as references to a board; and
(b) references to Article 16 are to be read as references to paragraphs (2) to (4).
2 Each board shall take such steps as it is reasonable for it to have to take to ensure that, in discharging any function to which Article 19 applies—
(a) disabled persons who may be admitted to a school as pupils are not placed at a substantial disadvantage in comparison with persons who are not disabled; and
(b) disabled pupils are not placed at a substantial disadvantage in comparison with pupils who are not disabled.
3 That does not require a board to—
(a) remove or alter a physical feature; or
(b) provide auxiliary aids or services.
4 This Article imposes duties only for the purpose of determining whether a board has discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such.
5 A reference in Article 22, 25(3) or 26 to a responsible body is to be read as including a reference to a board in relation to a function to which Article 19 applies.

Enforcement

21 Special Education Needs and Disability Tribunal for Northern Ireland
1 The Special Educational Needs Tribunal for Northern Ireland—
(a) shall continue to exist; but
(b) shall be known as the Special Educational Needs and Disability Tribunal for Northern Ireland.
2 It is referred to in this Chapter as “the Tribunal”.
3 In addition to its jurisdiction under Part II of the 1996 Order, the Tribunal is to exercise the jurisdiction conferred on it by this Chapter.

22 Jurisdiction and powers of the Tribunal
1 A claim that a responsible body—
(a) has discriminated against a person ( “A”) in a way which is made unlawful under this Chapter, or
(b) is by virtue of Article 45 to be treated as having discriminated against a person ( “A”) in such a way,
may be made to the Tribunal by A's parent.
2 But this Article does not apply to a claim to which Article 24 applies.
3 If the Tribunal considers that a claim under paragraph (1) is well founded—
(a) it may declare that A has been unlawfully discriminated against; and
(b) if it does so, it may make such order as it considers reasonable in all the circumstances of the case.
4 The power conferred by paragraph (3)(b)—
(a) may, in particular, be exercised with a view to obviating or reducing the adverse effect on the person concerned of any matter to which the claim relates; but
(b) does not include power to order the payment of any sum by way of compensation.

23 Procedure of the Tribunal
1 The Department of Justice may by regulations make provision about—
(a) the proceedings of the Tribunal on a claim of unlawful discrimination under this Chapter; and
(b) the making of a claim.
Words in art. 23(1) substituted (2.6.2021) by The Departments (Transfer of Functions) Order (Northern Ireland) 2021 (S.R. 2021/114), art. 1(2), Sch. para. 3(3)(a) (with art. 2(2)(a)(b))
2 The regulations may, in particular, include provision—
(a) as to the manner in which a claim must be made;
(b) if the jurisdiction of the Tribunal is being exercised by more than one tribunal—
(i) for determining by which tribunal any claim is to be heard, and
(ii) for the transfer of proceedings from one tribunal to another;
(c) for enabling functions which relate to matters preliminary or incidental to a claim (including, in particular, decisions under paragraph 2(3) of Schedule 2) to be performed by the President, or by the chairman;
(d) enabling hearings to be conducted in the absence of any member other than the chairman;
(e) as to the persons who may appear on behalf of the parties;
(f) for granting any person such discovery or inspection of documents or right to further particulars as might be granted by a county court;
(g) requiring persons to attend to give evidence and produce documents;
(h) for authorising the administration of oaths to witnesses;
(i) for the determination of claims without a hearing in prescribed circumstances;
(j) as to the withdrawal of claims;
(k) for enabling the Tribunal to stay proceedings on a claim;
(l) for the award of costs or expenses;
(m) for taxing or otherwise settling costs or expenses (and, in particular, for enabling costs to be taxed in the county court);
(n) for the registration and proof of decisions and orders; and
(o) for enabling prescribed decisions to be reviewed, or prescribed orders to be varied or revoked, in such circumstances as may be determined in accordance with the regulations.
3 Proceedings before the Tribunal are to be held in private, except in prescribed circumstances.
4 The Department of Justice may pay such allowances for the purpose of or in connection with the attendance of persons at the Tribunal as it may, with the consent of the Department of Finance and Personnel, determine.
Words in art. 23(4) inserted (2.6.2021) by The Departments (Transfer of Functions) Order (Northern Ireland) 2021 (S.R. 2021/114), art. 1(2), Sch. para. 3(3)(b) (with art. 2(2)(a)(b))
5 Part I of the Arbitration Act 1996 (c. 23) does not apply to proceedings before the Tribunal but the Department of Justice may by regulations make provision, in relation to such proceedings, corresponding to any provision of that Part.
Words in art. 23(5) substituted (2.6.2021) by The Departments (Transfer of Functions) Order (Northern Ireland) 2021 (S.R. 2021/114), art. 1(2), Sch. para. 3(3)(c) (with art. 2(2)(a)(b))
6 The regulations may make provision for a claim under this Chapter to be heard, in prescribed circumstances, with an appeal under Part II of the 1996 Order.
7 A person who without reasonable excuse fails to comply with—
(a) a requirement in respect of the discovery or inspection of documents imposed by the regulations by virtue of paragraph (2)(f), or
(b) a requirement imposed by the regulations by virtue of paragraph (2)(g),
is guilty of an offence.
8 A person guilty of an offence under paragraph (7) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
9 Part I of Schedule 2 makes further provision about enforcement of this Chapter and about procedure.
10 In this Article, “prescribed” means prescribed by regulations made by the Department of Justice.
Art. 23(10) inserted (2.6.2021) by The Departments (Transfer of Functions) Order (Northern Ireland) 2021 (S.R. 2021/114), art. 1(2), Sch. para. 3(3)(d) (with art. 2(2)(a)(b))
Art. 23: Transfer of functions (2.6.2021) by The Departments (Transfer of Functions) Order (Northern Ireland) 2021 (S.R. 2021/114), arts. 1(2), 5 (with art. 2(2)(a)(b))

24 Expulsions
1 This Article applies to a claim that, in relation to a decision to expel a pupil from a grant-aided school in accordance with a scheme under Article 49 of the 1986 Order, a responsible body—
(a) has discriminated against a person in a way which is made unlawful under this Chapter; or
(b) is by virtue of Article 45 to be treated as having discriminated against a person in such a way.
2 The claim shall be made under the appeal arrangements made under Article 49(6) of the 1986 Order.
3 The appeal tribunal hearing the claim has the powers which it has in relation to an appeal under Article 49 of that Order.

25 Role of the Department of Education
1 Article 101 of the 1986 Order (directions by Department as to performance by relevant authorities of duties imposed by or under any provision of the Education Orders) applies in relation to the performance by a responsible body of the duty imposed by or under Article 17 or 18 as it applies in relation to the performance by a relevant authority of any duty imposed by or under a provision of the Education Orders.
2 Paragraph (3) applies if the Tribunal has made an order under Article 22(3).
3 If the Department is satisfied (whether on a complaint or otherwise) that a responsible body—
(a) has acted, or is proposing to act, unreasonably in complying with the order, or
(b) has failed to comply with the order,
it may give that body such directions as to compliance with the order as appear to the Department to be expedient.
4 Directions under paragraph (3) may be varied or revoked by the Department.
5 Paragraphs (6) to (10) of Article 101 of the 1986 Order apply in relation to directions under paragraph (3) as they apply in relation to directions under paragraph (1) of that Article.

Agreements relating to enforcement

26 Validity and revision of agreements
1 Any term in a contract or other agreement made by or on behalf of a responsible body is void so far as it purports to—
(a) require a person to do anything which would contravene any provision of, or made under, this Chapter;
(b) exclude or limit the operation of any provision of, or made under, this Chapter; or
(c) prevent any person from making a claim under this Chapter.
2 Sub-paragraphs (b) and (c) of paragraph (1) do not apply to an agreement settling a claim—
(a) under Article 22; or
(b) to which Article 24 applies.
3 On the application of any person interested in an agreement to which paragraph (1) applies, a county court may make such order as it thinks just for modifying the agreement to take account of the effect of paragraph (1).
4 No such order may be made unless all persons affected have been—
(a) given notice of the application; and
(b) afforded an opportunity to make representations to the court.
5 Paragraph (4) applies subject to any county court rules providing for notice to be dispensed with.
6 An order under paragraph (3) may include provision as respects any period before the making of the order.

CHAPTER II FURTHER AND HIGHER EDUCATION

Interpretation of this Chapter

27 Interpretation of this Chapter
1 In this Chapter—
“college of education” has the meaning given in Article 2(2) of the Education and Libraries (Northern Ireland) Order 1986 (NI 3);
“the Department” means the Department for Employment and Learning;
“disabled student” means a student who is a disabled person;
“Discrimination” and other related expressions are to be construed in accordance with Article 29;
“Harassment” is to be construed in accordance with Article 29A;
“institution of further education” has the meaning given in Article 2(2) of the Further Education (Northern Ireland) Order 1997 (NI 15);
“Physical feature”, in relation to any premises, includes any of the following (whether permanent or temporary)—
(a) any feature arising from the design or construction of a building on the premises,
(b) any feature on the premises of any approach to, exit from or access to such a building,
(c) any fixtures, fittings, furnishings, furniture, equipment or material in or on the premises, and
(d) any other physical element or quality of any land comprised in the premises.
“prescribed” means prescribed by regulations;
“Provision, criterion or practice”includes any arrangements;
“Qualification”means any authorisation, qualification, approval or certification conferred by a responsible body;
“regulations” means regulations made by the Department;
“responsible body” has the meaning given in paragraph (4);
“student” means a person who is attending, or undertaking a course of study at, an educational institution;
“student services” means (subject to paragraph (2)) services of any description which are provided wholly or mainly for students;
“university” has the meaning given in Article 30(3) of the Education (Northern Ireland) Order 1993 (NI 12).
1A References (however expressed) to the conferment of a qualification on a person by a responsible body include—
(a) the renewal or extension of a qualification, and
(b) the authentication of a qualification awarded to him by another person.
Art. 27(1A) inserted (10.8.2006 for certain purposes and 1.9.2006 otherwise) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1, 17(2)
2 Regulations may make provision as to services which are, or are not, to be regarded for the purposes of this Chapter as student services.
3 In this Chapter “educational institution” means—
(a) a university;
(b) an institution of further education;
(c) a college of education;
(d) the College of Agriculture, Food and Rural Enterprise; or
(e) an institution designated in an order made by the Department for Employment and Learning.
4 For the purposes of this Chapter the body responsible for an educational institution is—
(a) in the case of a university, the governing body;
(b) in the case of an institution of further education, the governing body;
(c) in the case of a college of education, the managers;
2005 NI 13
(e) in the case of the College of Agriculture, Food and Rural Enterprise, the Department of Agriculture and Rural Development;
(f) in the case of an institution designated by an order under paragraph (3)(e), the body specified as such in the order;
and in this Chapter that body is referred to as the “responsible body”.
5 The Department for Employment and Learning may not make an order under paragraph (3)(e) unless it is satisfied that the institution concerned is wholly or partly funded from public funds.
Art. 27(1): definition of "Discrimination" inserted (10.8.2006 for certain purposes and 1.9.2006 otherwise) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1, 17(1)
Art. 27(1): definition of "Harassment" inserted (10.8.2006 for certain purposes and 1.9.2006 otherwise) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1, 17(1)
Art. 27(1): definition of "Physical feature" inserted (10.8.2006 for certain purposes and 1.9.2006 otherwise) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1, 17(1)
Art. 27(1): definition of "Provision, criterion or practice" inserted (10.8.2006 for certain purposes and 1.9.2006 otherwise) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1, 17(1)
Art. 27(1): definition of "Qualification" inserted (10.8.2006 for certain purposes and 1.9.2006 otherwise) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1, 17(1)

Duties of responsible bodies

28 Discrimination against disabled students and prospective students
1 It is unlawful for the body responsible for an educational institution to discriminate against a disabled person—
(a) in the arrangements it makes for determining admissions to the institution;
(b) in the terms on which it offers to admit him to the institution; or
(c) by refusing or deliberately omitting to accept an application for his admission to the institution.
2 It is unlawful for the body responsible for an educational institution to discriminate against a disabled student in the student services it provides, or offers to provide.
3 It is unlawful for the body responsible for an educational institution to discriminate against a disabled student by suspending or expelling him from the institution.
3A It is unlawful for the body responsible for an educational institution to discriminate against a disabled person—
(a) in the arrangements which it makes for the purpose of determining upon whom to confer a qualification;
(b) in the terms on which it is prepared to confer a qualification on him;
(c) by refusing or deliberately omitting to grant any application by him for a qualification; or
(d) by withdrawing a qualification from him or varying the terms on which he holds it.
Art. 28(3A)(3B) inserted (10.8.2006 for certain purposes and 1.9.2006 otherwise) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1, 5
3B It is unlawful for the body responsible for an educational institution to subject to harassment a disabled person who—
(a) holds or applies for a qualification conferred by the institution;
(b) is a student at the institution; or
(c) seeks admission as a student to the institution.
4 In the case of an act which constitutes discrimination by virtue of Article 43, this Article also applies to discrimination against a person who is not disabled.

29 Meaning of “discrimination”
1 For the purposes of this Chapter , a responsible body discriminates against a disabled person if—
(a) for a reason which relates to his disability, it treats him less favourably than it treats or would treat others to whom that reason does not or would not apply; and
(b) it cannot show that the treatment in question is justified.
Words in art. 29(1) substituted (10.8.2006 for certain purposes and 1.9.2006 otherwise) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1, 6(2)
2 For the purposes of this Chapter, a responsible body also discriminates against a disabled person if it fails to comply with a duty imposed on it by Article 30 or 30A(5) in relation to the disabled person.
Art. 29(2) substituted (10.8.2006 for certain purposes and 1.9.2006 otherwise) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1, 6(3)
3 In relation to a failure to take a particular step, a responsible body does not discriminate against a person if it shows—
(a) that, at the time in question, it did not know and could not reasonably have been expected to know, that he was disabled; and
(b) that its failure to take the step was attributable to that lack of knowledge.
4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Art. 29(4) omitted (10.8.2006 for certain purposes and 1.9.2006 otherwise) by virtue of Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1, 6(4)
5 Treatment, other than the application of a competence standard, is (subject to paragraphs (7) to (9)), justified for the purposes of paragraph (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.
Art. 29(5)-(11) substituted (1.9.2006) for art. 29(5)-(9) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1, 6(5)
6 The application by a responsible body of a competence standard to a disabled person is (subject to paragraphs (8) and (9)) justified for the purposes of paragraph (1)(b) if, but only if, the body can show that—
(a) the standard is, or would be, applied equally to persons who do not have his particular disability, and
(b) its application is a proportionate means of achieving a legitimate aim.
7 If in a case falling within paragraph (1), other than a case where the treatment is the application of a competence standard, a responsible body is under a duty under Article 30 or 30A(5) in relation to the disabled person, but fails to comply with that duty, its treatment of that person cannot be justified under paragraph (5) unless that treatment would have been justified even if it had complied with that duty.
8 Subject to paragraph (9), regulations may make provision, for the purposes of this Article, as to circumstances in which treatment is, or as to circumstances in which treatment is not, to be taken to be justified.
9 Treatment of a disabled person by a responsible body cannot be justified under paragraph (5), (6) or (8) if it amounts to direct discrimination falling within paragraph (10).
10 A responsible body directly discriminates against a disabled person if, on the ground of the disabled person's disability, it treats the disabled person less favourably than it treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.
11 In this Article and Article 30, “competence standard” means an academic, medical or other standard applied by or on behalf of a responsible body for the purpose of determining whether or not a person has a particular level of competence or ability.

29A Meaning of “harassment”
1 For the purposes of this Chapter, a responsible body subjects a disabled person to harassment where, for a reason which relates to the disabled person's disability, that body engages in unwanted conduct which has the purpose or effect of—
(a) violating the disabled person's dignity, or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
2 Conduct shall be regarded as having the effect referred to in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect.
Art. 29A inserted (10.8.2006 for certain purposes and 1.9.2006 otherwise) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1, 7

30 Responsible bodies' duties to make adjustments
1 Where—
(a) a provision, criterion or practice, other than a competence standard, is applied by or on behalf of a responsible body,
(b) it is a provision, criterion or practice relating to—
(i) the arrangements it makes for determining admissions to the institution, or
(ii) student services provided for, or offered to, students by the responsible body, and
(c) that provision, criterion or practice places disabled persons at a substantial disadvantage in comparison with persons who are not disabled,
it is the duty of the responsible body to take such steps as are reasonable, in all the circumstances of the case, to prevent the provision, criterion or practice having that effect.
Art. 30(1)-(1D) substituted (10.8.2006 for certain purposes and 1.9.2006 otherwise) for art. 30(1) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1(3), 8
1A Where—
(a) a provision, criterion or practice, other than a competence standard, is applied by or on behalf of a responsible body,
(b) it is a provision, criterion or practice for determining on whom a qualification is to be conferred,
(c) a disabled person is, or has notified the body that he may be, an applicant for the conferment of that qualification, and
(d) the provision, criterion or practice places the disabled person at a substantial disadvantage in comparison with persons who are not disabled,
it is the duty of the responsible body to take such steps as are reasonable, in all the circumstances of the case, to prevent the provision, criterion or practice having that effect.
1B Where—
(a) a provision, criterion or practice, other than a competence standard, is applied by or on behalf of a responsible body,
(b) it is a provision, criterion or practice other than one mentioned in paragraph (1)(b) or (1A)(b), and
(c) it places a disabled person who—
(i) holds a qualification conferred by the responsible body, or
(ii) applies for a qualification which the responsible body confers, at a substantial disadvantage in comparison with persons who are not disabled,
it is the duty of the responsible body to take such steps as are reasonable, in all the circumstances of the case, to prevent the provision, criterion or practice having that effect.
1C Where any physical feature of premises occupied by a responsible body places disabled persons at a substantial disadvantage in comparison with persons who are not disabled in relation to—
(a) the arrangements which that body makes for determining admissions to the institution, or
(b) student services provided for, or offered to, students by that body,
it is the duty of the body to take such steps as are reasonable, in all the circumstances of the case, to prevent the feature having that effect.
1D Where any physical feature of premises occupied by a responsible body places a disabled person who—
(a) applies for a qualification which that body confers, or
(b) holds a qualification which was conferred by that body,
at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the body to take such steps as are reasonable, in all the circumstances of the case, to prevent the feature having that effect.
2 In considering whether it is reasonable for it to have to take a particular step in order to comply with its duty under any of paragraphs (1) to (1D) , a responsible body shall have regard to any relevant provisions of a code of practice issued under section 54A of the 1995 Act.
Words in art. 30(2) substituted (10.8.2006 for certain purposes and 1.9.2006 otherwise) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1(3), 9
3 Paragraph (4) applies if a person has made a confidentiality request of which a responsible body is aware.
4 In determining whether it is reasonable for the responsible body to have to take a particular step in relation to that person in order to comply with its duty under any of paragraphs (1) to (1D) , regard shall be had to the extent to which taking the step in question is consistent with compliance with that request.
Words in art. 30(4) substituted (10.8.2006 for certain purposes and 1.9.2006 otherwise) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1(3), 9
5 “Confidentiality request” means a request made by a disabled person, which asks for the nature, or asks for the existence, of his disability to be treated as confidential.
6 This Article imposes duties only for the purpose of determining whether a responsible body has discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such.
Art. 30 heading substituted (10.8.2006 for certain purposes and 1.9.2006 otherwise) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1(3), 8

Other unlawful acts

30A Relationships which have come to an end
1 This Article applies where—
(a) there has been a relevant relationship between a disabled person and a responsible body, and
(b) that relationship has come to an end.
2 In this Article a “relevant relationship” is a relationship during the course of which an act of discrimination against, or harassment of, one party to the relationship by the other party to it is unlawful under any preceding provision of this Chapter.
3 It is unlawful for the responsible body—
(a) to discriminate against the disabled person by subjecting him to a detriment, or
(b) to subject the disabled person to harassment,
where the discrimination or harassment arises out of and is closely connected to the relevant relationship.
4 This paragraph applies where—
(a) a provision, criterion or practice applied by the responsible body to the disabled person in relation to any matter arising out of the relevant relationship, or
(b) a physical feature of premises which are occupied by the responsible body,
places the disabled person at a substantial disadvantage in comparison with persons who are not disabled but are in the same position as the disabled person in relation to the responsible body.
5 Where paragraph (4) applies, it is the duty of the responsible body to take such steps as are reasonable, in all the circumstances of the case, to prevent the provision, criterion or practice, or feature, having that effect.
6 Paragraph (5) imposes duties only for the purpose of determining whether a responsible body has discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such.
7 Nothing in paragraph (5) imposes any duty on the responsible body if it does not know, and could not reasonably be expected to know, that the person has a disability and is likely to be affected in the way mentioned in that paragraph.
8 In paragraph (2), reference to an act of discrimination or harassment which is unlawful includes, in the case of a relationship which has come to an end before the commencement of this Article, reference to such an act which would, after the commencement of this Article, be unlawful.

30B Instructions and pressure to discriminate
1 It is unlawful for a responsible body to instruct another person to do any act which is unlawful under this Chapter or to procure or attempt to procure the doing of any such unlawful act by that other person.
2 It is also unlawful for a responsible body to induce, or attempt to induce, another person to do any act which is unlawful under this Chapter by—
(a) providing or offering to provide that person with any benefit, or
(b) subjecting or threatening to subject that person to any detriment.
3 An attempted inducement is not prevented from falling within paragraph (2) because it is not made directly to the person in question, if it is made in such a way that he is likely to hear of it.

30C Discriminatory advertisements
1 It is unlawful for a responsible body to publish or cause to be published an advertisement which—
(a) invites applications in relation to any course or student service provided or offered by it, or any qualification conferred by it, and
(b) indicates, or might reasonably be understood to indicate, that such an application will or may be determined to any extent by reference to—
(i) the applicant not having any disability, or any particular disability, or
(ii) any reluctance on the part of the person determining the application to comply with a duty imposed on it by Article 30.
2 Paragraph (1) does not apply where it would not in fact be unlawful under this Chapter for an application to be determined in the manner indicated (or understood to be indicated) in the advertisement.
3 In this Article, “advertisement” includes every form of advertisement or notice, whether to the public or not.
Arts. 30A-30C and cross-heading inserted (10.8.2006 for certain purposes and 1.9.2006 otherwise) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1(3), 10

Enforcement, etc.

31 Enforcement, remedies and procedures
1 A claim by a person—
(a) that a responsible body has discriminated against him , or subjected him to harassment, in a way which is unlawful under this Chapter,
Words in art. 31(1)(a) inserted (10.8.2006 for certain purposes and 1.9.2006 otherwise) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1, 11(2)(a)
(b) that a responsible body is by virtue of Article 44 or 45 to be treated as having done so , or
Words in art. 31(1)(b) substituted (10.8.2006 for certain purposes and 1.9.2006 otherwise) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1, 11(2)(b)
(c) that a person is by virtue of Article 44 to be treated as having done so ,
Words in art. 31(1)(c) substituted (10.8.2006 for certain purposes and 1.9.2006 otherwise) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1, 11(2)(b)
may be made the subject of civil proceedings in the same way as any other claim in tort for breach of statutory duty.
1A Where—
(a) a claim is brought under paragraph (1), and
(b) the claimant proves facts from which the court could, apart from this paragraph, conclude in the absence of an adequate explanation that the defendant has acted in a way which is unlawful under this Chapter,
the court shall uphold the claim unless the defendant proves that he did not so act.
Art. 31(1A) inserted (10.8.2006 for certain purposes and 1.9.2006 otherwise) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1, 11(3)
2 Damages in respect of discrimination in a way which is unlawful under this Chapter may include compensation for injury to feelings whether or not they include compensation under any other head.
3 Proceedings may be brought only in a county court.
4 The remedies available in such proceedings are those which are available in the High Court
5 The fact that a person who brings proceedings under this Chapter against a responsible body may also be entitled to bring proceedings against that body under Part II of the 1995 Act is not to affect the proceedings under this Chapter.
6 Part II of Schedule 2 makes further provision about the enforcement of this Chapter and about procedure.

31A Enforcement of Articles 30B and 30C
1 This Article applies to an act which is unlawful under Articles 30B or 30C.
2 Legal proceedings in relation to an act to which this Article applies may only be brought by the Commission in accordance with this Article and may not be brought by anyone else.
3 Where the Commission thinks that a person has done an act to which this Article applies the Commission may apply to a county court.
4 On an application under paragraph (3) in respect of an alleged act to which this Article applies, the court shall determine whether the allegation is correct.
5 The Commission may apply to a county court for an injunction restraining a person from doing an act to which this Article applies where—
(a) either—
(i) a court has determined under paragraph (4) that the person has done an act to which this Article applies, or
(ii) the Commission thinks that the person has done an act to which this Article applies, and
(b) the Commission thinks that if unrestrained the person is likely to do another act to which this Article applies.
6 Paragraph (1) does not apply to an act which constitutes an offence.
7 In this Article “the Commission” means the Equality Commission for Northern Ireland.
Arts. 31A, 31B inserted (10.8.2006 for certain purposes and 1.9.2006 otherwise) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1, 12

31B Enforcement of Articles 30B and 30C: supplemental matters
1 An application under Article 31A(3) may be presented or made only—
(a) within the period of six months beginning with the date (or last date) on which the alleged unlawful act occurred, or
(b) with the permission of the court.
2 A determination under Article 31A(4) shall not be relied upon by a county court in proceedings under Article 31A(5) while an appeal against the determination—
(a) is pending, or
(b) may be brought (disregarding the possibility of an appeal out of time with permission).
3 An application under Article 31A(5) may be made only—
(a) within the period of five years beginning with the date (or last date) on which the unlawful act referred to in that paragraph occurred, or
(b) with the permission of the court.

32 Occupation of premises by educational institution
1 This Article applies if—
(a) premises are occupied by an educational institution under a lease;
(b) but for this Article, the responsible body would not be entitled to make a particular alteration to the premises; and
(c) the alteration is one which the responsible body proposes to make in order to comply with Article 30 or Article 30A(5) .
Words in art. 32(1)(c) inserted (10.8.2006 for certain purposes and 1.9.2006 otherwise) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1, 13
2 Except to the extent to which it expressly so provides, the lease has effect, as a result of this paragraph, as if it provided—
(a) for the responsible body to be entitled to make the alteration with the written consent of the lessor;
mod. by SR 2005/371
(b) for the responsible body to have to make a written application to the lessor for consent if it wishes to make the alteration;
(c) if such an application is made, for the lessor not to withhold his consent unreasonably; and
(d) for the lessor to be entitled to make his consent subject to reasonable conditions.
3 In this Article—
“lease” includes a tenancy, sub-lease or sub-tenancy and an agreement for a lease, tenancy, sub-lease or sub-tenancy; and
“sub-lease” and “sub-tenancy” have such meaning as may be prescribed.
4 If the terms and conditions of a lease—
(a) impose conditions which are to apply if the responsible body alters the premises, or
(b) entitle the lessor to impose conditions when consenting to the responsible body's altering the premises,
the responsible body is to be treated for the purposes of paragraph (1) as not being entitled to make the alteration.
5 Schedule 3 supplements the provisions of this Article.

33 Validity and revision of agreements of responsible bodies
1 Any term in a contract or other agreement made by or on behalf of a responsible body is void so far as it purports to—
(a) require a person to do anything which would contravene any provision of, or made under, this Chapter;
(b) exclude or limit the operation of any provision of, or made under, this Chapter; or
(c) prevent any person from making a claim under this Chapter.
2 Sub-paragraphs (b) and (c) of paragraph (1) do not apply to an agreement settling a claim under Article 31.
3 On the application of any person interested in an agreement to which paragraph (1) applies, a county court may make such order as it thinks just for modifying the agreement to take account of the effect of paragraph (1).
4 No such order may be made unless all persons affected have been—
(a) given notice of the application; and
(b) afforded an opportunity to make representations to the court.
5 Paragraph (4) applies subject to any county court rules providing for notice to be dispensed with.
6 An order under paragraph (3) may include provision as respects any period before the making of the order.

CHAPTER III GENERAL QUALIFICATIONS BODIES

34 General qualifications bodies: discrimination and harassment
1 It is unlawful for a general qualifications body to discriminate against a disabled person—
(a) in the arrangements which it makes for the purpose of determining upon whom to confer a relevant qualification;
(b) in the terms on which it is prepared to confer a relevant qualification on him;
(c) by refusing or deliberately omitting to grant any application by him for such a qualification; or
(d) by withdrawing such a qualification from him or varying the terms on which he holds it.
2 It is also unlawful for a general qualifications body, in relation to a relevant qualification conferred by it, to subject to harassment a disabled person who holds or applies for such a qualification.
3 In the case of an act which constitutes discrimination by virtue of Article 43, this Article also applies to discrimination against a person who is not disabled.
4 In this Article and Article 37, “relevant qualification” means an authorisation, qualification, approval or certification of a prescribed description.
5 But an authorisation, qualification, approval or certification may not be prescribed under paragraph (4) if it is a professional or trade qualification (within the meaning given by section 14A(5) of the 1995 Act).
6 In this Chapter—
(a) “general qualifications body” means any authority or body which can confer a relevant qualification, but it does not include—
(i) a responsible body (within the meaning of Chapter I or II),
(ii) an education and library board, or
(iii) an authority or body of a prescribed description or in prescribed circumstances;
(b) references (however expressed) to the conferment of a qualification on a person include—
(i) the renewal or extension of a qualification, and
(ii) the authentication of a qualification awarded to him by another person.

35 Meaning of “discrimination”
1 For the purposes of Article 34, a body discriminates against a disabled person if—
(a) for a reason which relates to the disabled person's disability, it treats him less favourably than it treats or would treat others to whom that reason does not or would not apply; and
(b) it cannot show that the treatment in question is justified.
2 For the purposes of Article 34, a body also discriminates against a disabled person if it fails to comply with a duty imposed on it by Article 37 in relation to the disabled person.
3 Treatment, other than the application of a competence standard, is (subject to paragraphs (5) to (7)) justified for the purposes of paragraph (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.
4 The application by a body of a competence standard to a disabled person is (subject to paragraphs (6) and (7)) justified for the purposes of paragraph (1)(b) if, but only if, the body can show that—
(a) the standard is, or would be, applied equally to persons who do not have his particular disability; and
(b) its application is a proportionate means of achieving a legitimate aim.
5 If, in a case falling within paragraph (1) other than a case where the treatment is the application of a competence standard, a body is under a duty under Article 37 in relation to the disabled person but fails to comply with that duty, its treatment of that person cannot be justified under paragraph (3) unless it would have been justified even if the body had complied with that duty.
6 Regulations may make provision, for purposes of this Article, as to circumstances in which treatment is, or as to circumstances in which treatment is not, to be taken to be justified (but see paragraph (7)).
7 Treatment of a disabled person cannot be justified under paragraph (3), (4) or (6) if it amounts to direct discrimination falling within paragraph (8).
8 A body directly discriminates against a disabled person if, on the ground of the disabled person's disability, it treats the disabled person less favourably than it treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.
9 In this Article, “competence standard” means an academic, medical or other standard applied by or on behalf of a general qualifications body for the purpose of determining whether or not a person has a particular level of competence or ability.

36 Meaning of “harassment”
1 For the purposes of Article 34, a body subjects a disabled person to harassment where, for a reason which relates to the disabled person's disability, the body engages in unwanted conduct which has the purpose or effect of—
(a) violating the disabled person's dignity; or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
2 Conduct shall be regarded as having the effect referred to in sub-paragraph (a) or (b) of paragraph (1) only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect.

37 General qualifications bodies: duty to make adjustments
1 Where—
(a) a provision, criterion or practice, other than a competence standard, is applied by or on behalf of a general qualifications body,
(b) it is a provision, criterion or practice for determining on whom a relevant qualification is to be conferred,
(c) a disabled person is, or has notified the body that he may be, an applicant for the conferment of that qualification, and
(d) the provision, criterion or practice places the disabled person at a substantial disadvantage in comparison with persons who are not disabled,
it is the duty of the body to take such steps as it is reasonable, in all the circumstances of the case, for it to have to take in order to prevent the provision, criterion or practice having that effect.
2 Where—
(a) a provision, criterion or practice, other than a competence standard, is applied by or on behalf of a general qualifications body,
(b) it is a provision, criterion or practice other than one for determining on whom a relevant qualification is to be conferred, and
(c) it places a disabled person who—
(i) holds a relevant qualification conferred by the body, or
(ii) applies for a relevant qualification which the body confers,
at a substantial disadvantage in comparison with persons who are not disabled,
it is the duty of the body to take such steps as it is reasonable, in all the circumstances of the case, for it to have to take in order to prevent the provision, criterion or practice having that effect.
3 Where any physical feature of premises occupied by a general qualifications body places a disabled person who—
(a) holds a relevant qualification conferred by the body, or
(b) applies for a relevant qualification which the body confers,
at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the body to take such steps as it is reasonable, in all the circumstances of the case, for it to have to take in order to prevent the feature having that effect.
4 Nothing in paragraph (1), (2) or (3) imposes a duty on a general qualifications body in relation to a disabled person if the body does not know, and could not reasonably be expected to know—
(a) in the case of an applicant or potential applicant for the conferment of a relevant qualification, that the disabled person concerned is, or may be, such an applicant; or
(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in that paragraph.
5 In this Article—
(a) “provision, criterion or practice” includes (subject to any provision under paragraph (6)(e)) any arrangements;
(b) “competence standard” has the meaning given by Article 35(9).
6 Regulations may make provision, for purposes of this Article—
(a) as to circumstances in which a provision, criterion or practice is to be taken to have, or as to circumstances in which a provision, criterion or practice is to be taken not to have, the effect mentioned in paragraph (1)(d) or (2)(c);
(b) as to circumstances in which a physical feature is to be taken to have, or as to circumstances in which a physical feature is to be taken not to have, the effect mentioned in paragraph (3);
(c) as to circumstances in which it is, or as to circumstances in which it is not, reasonable for a body to have to take steps of a prescribed description;
(d) as to steps which it is always, or as to steps which it is never, reasonable for a body to have to take;
(e) as to what is, or as to what is not, to be included within the meaning of “provision, criterion or practice”;
(f) as to things which are, or as to things which are not, to be treated as physical features.
7 This Article imposes duties only for the purpose of determining whether a body has, for the purposes of Article 34, discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such.

37A Enforcement, remedies and procedures
1 A claim by a person—
(a) that a general qualifications body has discriminated against him, or subjected him to harassment, in a way which is unlawful under this Chapter,
(b) that a general qualifications body is by virtue of Article 44 or 45 to be treated as having done so, or
(c) that a person is by virtue of Article 44 to be treated as having done so,
may be made the subject of civil proceedings in the same way as any other claim in tort for breach of statutory duty.
2 Damages in respect of discrimination in a way which is unlawful under this Chapter may include compensation for injury to feelings whether or not they include compensation under any other head.
3 Proceedings may be brought only in a county court.
4 The remedies available in such proceedings are those which are available in the High Court.
5 The fact that a person who brings proceedings under this Chapter against a general qualifications body may also be entitled to bring proceedings against that body under Part II of the 1995 Act is not to affect proceedings under this Chapter.
6 Part III of Schedule 2 makes further provision about the enforcement of this Part and about procedure and evidence.
Art. 37A inserted (23.4.2008) by Special Educational Needs and Disability (2005 Order) (Amendment) (General Qualifications Bodies) (Alteration of Premises and Enforcement) Regulations (Northern Ireland) 2008 (S.R. 2008/177), reg. 3

37B Alterations to premises occupied under leases
1 This Article applies where—
(a) a general qualifications body occupies premises under a lease;
(b) but for this Article, the general qualifications body would not be entitled to make a particular alteration to the premises; and
(c) the alteration is one which the general qualifications body proposes to make in order to comply with the duty imposed by Article 37(3).
2 Except to the extent to which it expressly so provides, the lease shall have effect by virtue of this paragraph as if it provided—
(a) for the general qualifications body to be entitled to make the alteration with the written consent of the lessor;
(b) for the general qualifications body to have to make a written application to the lessor for consent if it wishes to make the alteration;
(c) if such an application is made, for the lessor not to withhold his consent unreasonably; and
(d) for the lessor to be entitled to make his consent subject to reasonable conditions.
3 In this Article and in Schedule 3A—
“lease” includes a tenancy, sub-lease or sub-tenancy and an agreement for a lease, tenancy, sub-lease or sub-tenancy;
“sub-lease” means any sub-term created out of, or deriving from, a leasehold .interest; and
“sub-tenancy” means any tenancy created out of, or deriving from, a superior tenancy.
4 For the purposes of paragraph (1), the general qualifications body is to be treated as not being entitled to make the alteration, if the terms and conditions of a lease—
(a) impose conditions which are to apply if the general qualifications body alters the premises, or
(b) entitle the lessor to impose conditions when consenting to the general qualification's body altering the premises.
5 Schedule 3A supplements the provisions of this Article.
Art. 37B modified (23.4.2008) by Special Educational Needs and Disability (2005 Order) (Amendment) (General Qualifications Bodies) (Alteration of Premises and Enforcement) Regulations (Northern Ireland) 2008 (S.R. 2008/177), reg. 12(2)
Art. 37B inserted (23.4.2008) by Special Educational Needs and Disability (2005 Order) (Amendment) (General Qualifications Bodies) (Alteration of Premises and Enforcement) Regulations (Northern Ireland) 2008 (S.R. 2008/177), reg. 5

38 Chapter III: claims, leased premises and certain agreements
1 Regulations may make provision for, or in connection with, the making of a claim by a person—
(a) that a general qualifications body has discriminated against him, or subjected him to harassment, in a way which is unlawful under this Chapter;
(b) that a general qualifications body is by virtue of Article 44 or 45 to be treated as having done so; or
(c) that a person is by virtue of Article 44 to be treated as having done so.
2 Regulations may, in relation to a case where premises are occupied by a general qualifications body under a lease—
(a) make provision modifying the lease, or make provision for its modification, in connection with the making of alterations to the premises in pursuance of a duty imposed on the body by Article 37;
(b) make provision in connection with the determination of questions that are about the body's compliance with any such duty and are related to the making of alterations to the premises.
3 Any term in a contract or other agreement made by or on behalf of a general qualifications body is void so far as it purports to—
(a) require a person to do anything which would contravene any provision of, or made under, this Chapter;
(b) exclude or limit the operation of any provision of, or made under, this Chapter; or
(c) prevent any person making a claim of a kind mentioned in paragraph (1).
4 Regulations may—
(a) make provision for paragraph (3)(b) or (c) not to apply to an agreement settling a claim of a kind mentioned in paragraph (1);
(b) make provision modifying an agreement to which paragraph (3) applies, or make provision for the modification of such an agreement, in order to take account of the effect of that paragraph.
5 The provision that may be made under paragraph (1), (2) or (4) includes (in particular)—
(a) provision as to the court or tribunal to which a claim, or an application in connection with a modification, may be made;
(b) provision for the determination of claims or matters otherwise than by the bringing of proceedings before a court or tribunal;
(c) provision for a person who is a lessor in relation to a lease under which a general qualifications body occupies premises to be made a party to proceedings;
(d) provision as to remedies;
(e) provision as to procedure;
(f) provision as to appeals;
(g) provision as to time limits;
(h) provision as to evidence;
(i) provision as to costs or expenses.
6 Provision under paragraph (1), (2) or (4) may take the form of amendments of this Part or the 1995 Act.
7 Regulations may make provision as to the meaning of “lease” or “lessor” in this Article.
8 Except as provided in regulations under paragraph (1), no civil or criminal proceedings may be brought against any person in respect of an act merely because the act is unlawful under this Chapter.
9 Paragraph (8) does not prevent the making of an application for judicial review.

39 Chapter III: regulations
1 In this Chapter—
“prescribed” means prescribed by regulations;
“regulations” means regulations made by the Department of Education.
2 Before making regulations under this Chapter, the Department of Education shall consult such persons as it appears to it to be appropriate to consult, having regard to the substance and effect of the regulations in question.

CHAPTER IV MISCELLANEOUS

40 Extension of role of Equality Commission
Schedule 4 extends the role of the Equality Commission for Northern Ireland in relation to discrimination made unlawful by this Part.

41 Codes of practice
1 Section 54A of the 1995 Act (codes of practice) is amended as follows.
2 For subsection (1) substitute—

“(1) The Commission may prepare and issue codes of practice giving practical guidance on how to avoid acts which are unlawful under Part II or III of this Act or Part III of the 2005 Order, or on any other matter relating to the operation of any provision of Part II or III of this Act or Part III of the 2005 Order, to—
(a) employers;
(b) service providers;
(c) bodies which are responsible bodies for the purposes of Chapter I or II of Part III of the 2005 Order; or
(d) other persons to whom the provisions of Part II or III of this Act or Part III of the 2005 Order apply.
(1A) The Commission may also prepare and issue codes of practice giving practical guidance to any persons on any other matter with a view to—
(a) promoting the equalisation of opportunities for disabled persons and persons who have had a disability; or
(b) encouraging good practice in the way such persons are treated,
in any field of activity regulated by any provision of Part II or III of this Act or Part III of the 2005 Order.
(1B) Neither subsection (1) nor (1A) applies in relation to any duty imposed by or under Article 17 or 18 of the 2005 Order.”

.
3 In subsection (8) after “Part III” insert “ or Part III of the 2005 Order ”.
4 At the end add—

“10 Subject to subsection (12), in relation to a code of practice giving practical guidance wholly or mainly as to—
(a) any matter relating to the operation of any provision of Chapter I or III of Part III of the 2005 Order; or
(b) any field of activity regulated by any such provision,
any reference in this section to the Office shall be read as a reference to the Department of Education.
11 Subject to subsection (12), in relation to a code of practice giving practical guidance wholly or mainly as to—
(a) any matter relating to the operation of any provision of Chapter II of Part III of the 2005 Order; or
(b) any field of activity regulated by any such provision,
any reference in this section to the Office shall be read as a reference to the Department for Employment and Learning.
12 Practical guidance which but for this subsection would fall to be contained in separate codes of practice by virtue of subsections (10) and (11) may be contained in a single code of practice; and in relation to any such code of practice any reference in this section to the Office shall be read as a reference to the Department of Education and the Department for Employment and Learning, acting jointly.”

.

42 Conciliation for disputes under this Part
1 The Equality Commission for Northern Ireland may make arrangements with any other person for the provision of conciliation services by, or by persons appointed by, that person in connection with disputes.
2 In deciding what arrangements (if any) to make, the Commission shall have regard to the desirability of securing, so far as reasonably practicable, that conciliation services are available for all disputes which the parties may wish to refer to conciliation.
3 No member or employee of the Commission may provide conciliation services in connection with disputes.
4 The Commission shall ensure that arrangements under this Article include appropriate safeguards to prevent the disclosure to members or employees of the Commission of information obtained by any person in connection with the provision of conciliation services in accordance with the arrangements.
5 Paragraph (4) does not apply to information which is disclosed with the consent of the parties to the dispute to which it relates.
6 Paragraph (4) does not apply to information which—
(a) does not identify a particular dispute or a particular person; and
(b) is reasonably required by the Commission for the purpose of monitoring the operation of the arrangements concerned.
7 Anything communicated to a person providing conciliation services in accordance with arrangements under this Article is not admissible in evidence in any proceedings except with the consent of the person who communicated it.
8 In this Article—
“conciliation services” means advice and assistance provided to the parties to a dispute, by a conciliator, with a view to promoting its settlement otherwise than through a court, tribunal or other body;
“dispute” means a dispute arising under an earlier Chapter of this Part concerning an allegation of discrimination or harassment and here—
(a) “discrimination” means anything which is made unlawful discrimination by a provision of the Chapter concerned; and
(b) “harassment” means anything which is made unlawful harassment by a provision of the Chapter concerned.

43 Victimisation
1 For the purposes of this Part, a person ( “A”) discriminates against another person ( “B”) if—
(a) he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B's; and
(b) he does so for a reason mentioned in paragraph (2).
2 The reasons are that—
(a) B has—
(i) brought proceedings against A or any other person under this Part or the 1995 Act; or
(ii) given evidence or information in connection with such proceedings brought by any person; or
(iii) otherwise done anything under or by reference to this Part or the 1995 Act in relation to A or any other person; or
(iv) alleged that A or any other person has (whether or not the allegation so states) contravened this Part or the 1995 Act; or
(b) A believes or suspects that B has done or intends to do any of those things.
3 For the purposes of Chapter I—
(a) references in paragraph (2) to B include references to—
(i) a person who is, for the purposes of that Chapter, B's parent; and
(ii) a sibling of B; and
(b) references in that paragraph to this Part or the 1995 Act are, as respects a person mentioned in head (i) or (ii) of sub-paragraph (a), to be read as references to that Chapter.
4 Where B is a disabled person, or a person who has had a disability, the disability in question shall be disregarded in comparing his circumstances with those of any other person for the purposes of paragraph (1)(a).
5 Paragraph (1) does not apply to treatment of a person because an allegation made by him if the allegation was false and not made in good faith.

44 Aiding unlawful acts
1 A person who knowingly aids another person to do an act made unlawful by any provision of this Part other than Chapter I is to be treated for the purposes of this Part as himself doing the same kind of unlawful act.
2 For the purposes of paragraph (1), an employee or agent for whose act the employer or principal is liable under Article 45 (or would be so liable but for Article 45(5)) shall be taken to have aided the employer or principal to do the act.
3 For the purposes of this Article, a person does not knowingly aid another to do an unlawful act if—
(a) he acts in reliance on a statement made to him by that other person that, because of any provision of this Part, the act would not be unlawful; and
(b) it is reasonable for him to rely on the statement.
4 A person who knowingly or recklessly makes such a statement which is false or misleading in a material respect is guilty of an offence.
5 Any person guilty of an offence under paragraph (4) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

45 Liability of employers and principals
1 Anything done by a person in the course of his employment shall be treated for the purposes of this Part as also done by his employer, whether or not it was done with the employer's knowledge or approval.
2 Anything done by a person as agent for another person with the authority of that other person shall be treated for the purposes of this Part as also done by that other person.
3 Paragraph (2) applies whether the authority was—
(a) express or implied; or
(b) given before or after the act in question was done.
4 Paragraphs (1) and (2) do not apply in relation to an offence under Article 44(4).
5 In proceedings under this Part against any person in respect of an act alleged to have been done by an employee of his, it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from—
(a) doing that act; or
(b) doing, in the course of his employment, acts of that description.

46 Statutory authority and national security
1 Nothing in this Part makes unlawful any act done—
(a) in pursuance of any statutory provision; or
(b) in pursuance of any instrument made by a Minister of the Crown or Northern Ireland department under any statutory provision; or
(c) to comply with any condition or requirement imposed by a Minister of the Crown or Northern Ireland department (whether before or after the making of this Order) by virtue of any statutory provision.
2 In paragraph (1) “statutory provision” includes one passed or made after the date on which this Order is made and “instrument” includes one made after that date.
3 Nothing in this Part makes unlawful any act done for the purpose safeguarding national security.

47 Application to Crown, etc.
1 This Part applies—
(a) to an act done by or for purposes of a Minister of the Crown or government department, or
(b) to an act done on behalf of the Crown by a statutory body, or a person holding a statutory office,
as it applies to an act done by a private person.
2 The provisions of Parts II to IV of the Crown Proceedings Act 1947 (c.44) apply to proceedings against the Crown under this Part as they apply to Crown proceedings in Northern Ireland; but section 20 of that Act (removal of proceedings from county court to High Court) does not apply.
3 In this Article—
“Crown proceedings” means proceedings which, by virtue of section 23 of the Crown Proceedings Act 1947, are treated for the purposes of Part II of that Act as civil proceedings by or against the Crown;
“government department” means a Northern Ireland department or a department of the Government of the United Kingdom;
“statutory body” means a body set up by or under a statutory provision;
“statutory office” means an office so set up.

48 Relationship of this Part with the 1995 Act
1 The 1995 Act is amended as follows.
2 In section 1 (meaning of “disability”) after “this Act” (twice) insert “ and Part III of the 2005 Order ”.
3 In section 2 (past disabilities)—
(a) in subsection (1), after “and III” insert “ and Part III of the 2005 Order ”;
(b) in subsection (3) after “this Act” insert “ or Part III of the 2005 Order ”; and
(c) in subsection (4) after “this Act” (twice) insert “ or Part III of the 2005 Order ”;
(d) in subsection (5) at the end add “ or (as the case may be) the making of the 2005 Order ”.
4 In subsection (3) of section 3 (courts, etc. to have regard to guidance), after “this Act” insert “ or Part III of the 2005 Order ”.
5 In section 14C (practical work experience) in subsection (3)(a) after “Part III” insert “ or of Part III of the 2005 Order ”.
6 In section 19 (discrimination in relation to goods, facilities and services) for subsections (5) and (6) substitute—

“(5) Except in such circumstances as may be prescribed, this section and sections 20 and 21 do not apply to—
(a) any service so far as it consists of the use of any means of transport; or
(b) such other services as may be prescribed.
(6) Nothing in this Part applies to the provision of a service in relation to which discrimination is made unlawful by Part III of the 2005 Order.”

.
7 In section 55 (victimisation), in subsection (2) after “this Act” (in each place) insert “ or Part III of the 2005 Order ”.
8 After subsection (3) of that section insert—

“(3A) For the purposes of Chapter I of Part III of the 2005 Order—
(a) references in subsection (2) to B include references to—
(i) a person who is, for the purposes of that Chapter, B's parent; and
(ii) a sibling of B; and
(b) references in that subsection to this Act or Part III of the 2005 Order are, as respects a person mentioned in sub-paragraph (i) or (ii) of paragraph (a), to be read as references to that Chapter.”

.
9 In paragraph 2 of Schedule 2 (past disabilities) after “and III” insert “ and Part III of the 2005 Order ”.
10 After paragraph 5 insert—

“6
References in Chapter I of Part III of the 2005 Order to a disabled pupil are to be read as references to a pupil who has had a disability.

7
References in Chapter II of Part III of the 2005 Order to a disabled student are to be read as references to a student who has had a disability.

8
In Article 15(3)(a) and (4) of the 2005 Order, after “disabled” insert “ or that he had had a disability ”.

9
In Article 16(1) of the 2005 Order, in sub-paragraphs (a) and (b), after “not disabled” insert “ and who have not had a disability ”.

10
1 In Article 29 of the 2005 Order in paragraph (3)(a), after “disabled” insert “ or that he had had a disability ”;
2 in paragraph (6)(a) of that Article, after “who do not have” insert “ and have not had ”; and
3 in paragraph (10) of that Article, for “that particular disability” substitute “ and who has not had that particular disability and ”.

11
In Articles 30(1)(c), (1A)(d), (1B)(c), (1C) and (1D) and 37(1)(d), 2(c) and (3) of the 2005 Order, after “not disabled” insert “ and who have not had a disability ”.

12
In Article 35(8) of the 2005 Order after “not having that particular disability” insert “ and who has not had that particular disability ”.

13
In Article 37(4)(b) of the 2005 Order for “has” substitute “ has had ”.”

Art. 48(10) substituted (10.8.2006) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1, 14
11 In section 68(1) at the appropriate place in alphabetical order insert—

““the 2005 Order””

. means the Special Educational Needs and Disability (Northern Ireland) Order 2005;

PART IV SUPPLEMENTARY

49 Regulations and orders
1 Subject to paragraph (3), regulations and orders under this Order shall be subject to negative resolution.
2 Paragraph (3) applies to—
(a) the first regulations to be made under each of paragraphs (1), (2) and (4) of Article 38;
(b) regulations under Article 38(1),(2) or (4) that amend Part III or the 1995 Act;
(c) regulations under Article 38(1) that make provision as to remedies.
3 No regulations to which this paragraph applies shall be made unless a draft of the regulations has been laid before, and approved by a resolution of, the Assembly
4 Any power under this Order to make regulations or orders includes power—
(a) to make incidental, supplemental, consequential or transitional provision and savings; and
(b) to provide for a person to exercise a discretion in dealing with any matter.

50 Amendments and repeals
Para. 1—Amendments
Para. 2—Repeals

SCHEDULES

SCHEDULE 1 SCHEDULE SUBSTITUTED FOR SCHEDULE 2 TO THE 1996 ORDER
Article 12

 

“SCHEDULE 2 MAKING AND MAINTENANCE OF STATEMENTS UNDER ARTICLE 16

Introductory
1 In this Schedule—
“amendment notice” has the meaning given in paragraph 3,
“statement” means a statement of a child's special educational needs under Article 16,
“periodic review” means a review conducted in accordance with Article 19(1)(b), and
“re-assessment review” means a review conducted in accordance with Article 19(1)(a).

Copy of proposed statement
2 1 Before making a statement, a board shall serve on the parent of the child concerned a copy of the proposed statement.
2 The copy of the proposed statement shall not specify—
(a) any prescribed matter,
(b) any matter in pursuance of Article 16(4).

Amendments to a statement
3 1 A board shall not amend a statement except—
(a) in compliance with an order of the Tribunal,
(b) as directed by the Department under paragraph 2(4) of Schedule 13 to the Education and Libraries (Northern Ireland) Order 1986 (NI 3), or
(c) in accordance with the procedure laid down in this Schedule.
2 If, following a re-assessment review, a board proposes to amend a statement, it shall serve on the parent of the child concerned a copy of the proposed amended statement.
3 The copy of the proposed amended statement shall not specify—
(a) any prescribed matter,
(b) any matter in pursuance of Article 16(4).
4 If, following a periodic review, a board proposes to amend a statement, it shall serve on the parent of the child concerned—
(a) a copy of the existing statement, and
(b) an amendment notice.
5 If, at any other time, a board proposes to amend a statement, it shall proceed as if the proposed amendment were an amendment proposed after a periodic review.
6 An amendment notice is a notice in writing giving details of the amendments to the statement proposed by the board.

Provision of additional information
4 1 Sub-paragraph (2) applies when a board serves on a parent—
(a) a copy of a proposed statement under paragraph 2,
(b) a copy of a proposed amended statement under paragraph 3, or
(c) an amendment notice under paragraph 3.
2 The board shall also serve on the parent a written notice explaining (to the extent that they are applicable)—
(a) the arrangements under paragraph 5,
(b) the effect of paragraph 6, and
(c) the right to appeal under Article 18.
3 A notice under sub-paragraph (2) shall contain such other information as may be prescribed.

Preference as to school
5 1 Every board shall make arrangements for enabling a parent—
(a) on whom a copy of a proposed statement has been served under paragraph 2,
(b) on whom a copy of a proposed amended statement has been served under paragraph 3, or
(c) on whom an amendment notice has been served under paragraph 3 which contains a proposed amendment about—
(i) the type or name of a school or institution, or
(ii) the provision made for the child concerned otherwise than in a school or institution under arrangements made under Article 10(1)(b),
to be specified in the statement,
to express a preference as to the grant-aided school at which he wishes education to be provided for his child and to give reasons for his preference.
2 Any such preference must be expressed or made within the period of fifteen days beginning—
(a) with the date on which the written notice mentioned in paragraph 4 was served on the parent, or
(b) if a meeting has (or meetings have) been arranged under paragraph 7(1)(b) or (2), with the date fixed for that meeting (or the last of those meetings).
3 Where a board makes a statement in a case where the parent of the child concerned has expressed a preference in pursuance of such arrangements as to the grant-aided school at which he wishes education to be provided for his child, the board shall specify the name of that school in the statement unless—
(a) the school is unsuitable to the child's age, ability or aptitude or to his special educational needs, or
(b) the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources.

Consultation on specifying name of school in statement
6 1 Sub-paragraph (2) applies if a board is considering—
(a) specifying the name of a grant-aided school in a statement, or
(b) amending a statement—
(i) if no school was specified in the statement before the amendment, so that a grant-aided school will be specified in it,
(ii) if a school was specified in the statement before the amendment, so that a different school, which is a grant-aided school, will be specified in it.
2 The board shall—
(a) serve a copy of the proposed statement or amended statement, or of the existing statement and of the amendment notice, on each affected body, and
(b) consult each affected body.
3 “Affected body” means—
(a) the Board of Governors of any school which the board is considering specifying; and
(b) if a school which the board is considering specifying is in the area of another board, that board.

Representations
7 1 A parent on whom a copy of a proposed statement has been served under paragraph 2 or on whom a proposed amended statement or an amendment notice has been served under paragraph 3 may—
(a) make representations (or further representations) to the board about the content of the proposed statement or the statement as it will have effect if amended in the way proposed by the board, and
(b) require the board to arrange a meeting between him and an officer of the board at which the proposed statement or the statement as it will have effect if amended in the way proposed by the board can be discussed.
2 Where a parent, having attended a meeting arranged by a board under sub-paragraph (1)(b) in relation to—
(a) a proposed statement, or
(b) an amendment proposed following a re-assessment review,
disagrees with any part of the assessment in question, he may require the board to arrange such meeting or meetings as it considers will enable him to discuss the relevant advice with the appropriate person or persons.
3 In this paragraph—
“relevant advice” means such of the advice given to the board in connection with the assessment as it considers to be relevant to that part of the assessment with which the parent disagrees, and
“appropriate person” means the person who gave the relevant advice or any other person who, in the opinion of the board, is the appropriate person to discuss it with the parent.
4 Any representations under sub-paragraph (1)(a) must be made within the period of fifteen days beginning—
(a) with the date on which the written notice mentioned in paragraph 4 was served on the parent, or
(b) if a meeting has (or meetings have) been arranged under sub-paragraph (1)(b) or (2), with the date fixed for that meeting (or the last of those meetings).
5 A requirement under sub-paragraph (1)(b) must be made within the period of fifteen days beginning with the date on which the written notice mentioned in paragraph 4 was served on the parent.
6 A requirement under sub-paragraph (2) must be made within the period of fifteen days beginning with the date fixed for the meeting arranged under sub-paragraph (1)(b).

Making the statement
8 1 Where representations are made to a board under paragraph 7(1)(a), the board shall not make or amend the statement until it has considered the representations and the period or the last of the periods allowed by paragraph 7 for making requirements or further representations has expired.
2 If a board makes a statement, it may be in the form originally proposed (except as to the matters required to be excluded from the copy of the proposed statement) or in a form modified in the light of the representations.
3 If a board amends a statement following service of a proposed amended statement under paragraph 3, the amended statement made may be in the form proposed or in a form modified in the light of the representations.
4 If a board amends a statement following service of an amendment notice, the amendments may be those proposed in the notice or amendments modified in the light of the representations.
5 Regulations may provide that, where a board is under a duty (subject to compliance with the preceding requirements of this Schedule) to make a statement, the duty, or any step required to be taken for performance of the duty, must, subject to prescribed exceptions, be performed within the prescribed period.
6 Such provision shall not relieve the board of the duty to make a statement, or take any step, which has not been performed or taken within that period.

Service of statement
9 1 Where a board makes or amends a statement it shall serve a copy of the statement, or the amended statement, on the parent of the child concerned.
2 It shall, at the same time, give the parent written notice of his right to appeal under Article 18(1) against—
(a) the description in the statement of the board's assessment of the child's special educational needs,
(b) the special educational provision specified in the statement (including the name of a school specified in the statement), or
(c) if no school is named in the statement, that fact.
3 A notice under sub-paragraph (2) must contain such other information as may be prescribed.

Keeping, disclosure and transfer of statements
10 1 Regulations may make provision as to the keeping and disclosure of statements.
2 Regulations may make provision, where a board becomes responsible for a child for whom a statement is maintained by another board, for the transfer of the statement to it and for Part II of this Order to have effect as if the duty to maintain the transferred statement were its duty.

Change of named school
11 1 Sub-paragraph (2) applies where—
(a) the parent of a child for whom a statement is maintained which specifies the name of a school or institution asks the board to substitute for that name the name of a grant-aided school specified by the parent, and
(b) the request is not made less than twelve months after—
(i) a request under this paragraph,
(ii) the service of a copy of the statement or amended statement under paragraph 9, or
(iii) if the parent has appealed to the Tribunal under Article 18 or this paragraph, the date when the appeal is concluded,
whichever is the later.
2 The board shall comply with the request unless—
(a) the school is unsuitable to the child's age, ability or aptitude or to his special educational needs, or
(b) the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources.
3 Where the board decides not to comply with the request—
(a) it shall give notice in writing of that fact to the child's parent, and
(b) the parent of the child may appeal to the Tribunal against the decision.
4 A notice under sub-paragraph (3)(a) must inform the parent of the right of appeal under sub-paragraph (3)(b) and contain such other information as may be prescribed
5 On the appeal the Tribunal may—
(a) dismiss the appeal, or
(b) order the board to substitute for the name of the school or other institution specified in the statement the name of the grant-aided school specified by the parent.
6 Regulations may provide that, where a board is under a duty to comply with a request under this paragraph, the duty must, subject to prescribed exceptions, be performed within the prescribed period.
7 Such provision shall not relieve the board of the duty to comply with such a request which has not been complied with within that period.

Procedure for ceasing to maintain a statement
12 1 A board may not cease to maintain a statement except in accordance with paragraph 13.
2 Sub-paragraph (1) does not apply where the board—
(a) ceases to maintain a statement for a child who has ceased to be a child for whom it is responsible, or
(b) is ordered to cease to maintain a statement under Article 18(3)(c).
13 1 A board may cease to maintain a statement only if it is no longer necessary to maintain it.
2 Where the board decides to cease to maintain a statement—
(a) it shall give notice in writing of that fact to the child's parent, and
(b) the parent of the child may appeal to the Tribunal against the decision.
3 A notice under sub-paragraph (2)(a) must inform the parent of the right of appeal under sub-paragraph (2)(b) and contain such other information as may be prescribed.
4 On an appeal under this paragraph the Tribunal may—
(a) dismiss the appeal, or
(b) order the board to continue to maintain the statement in its existing form or with such amendments of the description in the statement of the board's assessment of the child's special educational needs or the special educational provision specified in the statement, and such other consequential amendments, as the Tribunal may determine.
5 Except where the parent of the child appeals to the Tribunal under this paragraph, a board may only cease to maintain a statement under this paragraph within the prescribed period beginning with the service of the notice under sub-paragraph (2).
6 A board may not, under this paragraph, cease to maintain a statement if—
(a) the parent of the child has appealed under this paragraph against the board's determination to cease to maintain the statement; and
(b) the appeal has not been determined by the Tribunal or withdrawn.”

.

SCHEDULE 2 ENFORCEMENT AND PROCEDURE
Articles 23(9) and 31(6) , 37A(6)

PART I DISCRIMINATION IN SCHOOLS

Restriction on proceedings for breach of Chapter I of Part III
1 (1) Except as provided by Articles 22 and 24, no civil or criminal proceedings may be brought against any person in respect of an act merely because the act is unlawful under Chapter I of Part III of this Order.
(2) Sub-paragraph (1) does not prevent—
(a) the making of an application for judicial review;
(b) the bringing of proceedings in respect of an offence under Article 23(7).

Period within which proceedings must be brought
2 (1) The Tribunal shall not consider a claim under Article 22 unless proceedings in respect of the claim are instituted before the end of the period of six months beginning when the act complained of was done.
(2) If, in relation to proceedings or prospective proceedings under Article 22, the dispute concerned is referred for conciliation in pursuance of arrangements under Article 42 before the end of the period of six months mentioned in sub-paragraph (1), the period allowed by that sub-paragraph shall be extended by two months.
(3) The Tribunal may consider any claim under Article 22 which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.
(4) But sub-paragraph (3) does not permit the Tribunal to decide to consider a claim if a decision not to consider that claim has previously been taken under that sub-paragraph.
(5) For the purposes of sub-paragraph (1)—
(a) if an unlawful act of discrimination is attributable to a term in a contract, that act is to be treated as extending throughout the duration of the contract;
(b) any act extending over a period shall be treated as done at the end of that period; and
(c) a deliberate omission shall be treated as done when the person in question decided upon it.
(6) In the absence of evidence establishing the contrary, a person shall be taken for the purposes of this paragraph to decide upon an omission—
(a) when he does an act inconsistent with doing the omitted act; or
(b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done.

Evidence
3 (1) In any proceedings under Article 22 or 24, a certificate signed by or on behalf of a Minister of the Crown or a Northern Ireland department and certifying that any conditions or requirements specified in the certificate—
(a) were imposed by that Minister or that department (as the case may be), and
(b) were in operation at a time or throughout a time so specified,
shall be conclusive evidence of the matters certified.
(2) A document purporting to be such a certificate shall be received in evidence and, unless the contrary is proved, be deemed to be such a certificate.

PART II DISCRIMINATION IN FURTHER AND HIGHER EDUCATION INSTITUTIONS

Restriction on proceedings for breach of Chapter II of Part III
4 (1) Except as provided by Chapter II of Part III , no civil or criminal proceedings may be brought against any person in respect of an act merely because the act is unlawful under that Chapter of this Order.
Words in Sch. 2 Pt. 2 para. 4(1) substituted (10.8.2006 for certain purposes and 1.9.2006 otherwsie) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1, 15(2)(a)
Words in Sch. 2 Pt. 2 para. 4(1) substituted (10.8.2006 for certain purposes and 1.9.2006 otherwise) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1, 15(2)(b)
(2) Sub-paragraph (1) does not prevent the making of an application for judicial review.

Period within which proceedings must be brought
5 (1) A county court shall not consider a claim under Article 31 unless proceedings in respect of the claim are instituted before the end of the period of six months beginning when the act complained of was done.
(2) If, in relation to proceedings or prospective proceedings under Article 31, the dispute concerned is referred for conciliation in pursuance of arrangements under Article 42 before the end of the period of six months mentioned in sub-paragraph (1), the period allowed by that sub-paragraph shall be extended by two months.
(3) A court may consider any claim under Article 31 which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.
(4) For the purposes of sub-paragraph (1)—
(a) if an unlawful act . . . is attributable to a term in a contract, that act is to be treated as extending throughout the duration of the contract;
Words in Sch. 2 Pt. 2 para. 5(4)(a) omitted (10.8.2006 for certain purposes and 1.9.2006 otherwise) by virtue of Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1, 15(3)
(b) any act extending over a period shall be treated as done at the end of that period; and
(c) a deliberate omission shall be treated as done when the person in question decided upon it.
(5) In the absence of evidence establishing the contrary, a person shall be taken for the purposes of this paragraph to decide upon an omission—
(a) when he does an act inconsistent with doing the omitted act; or
(b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done.

Compensation for injury to feelings
6 In any proceedings under Article 31, the amount of any damages awarded as compensation for injury to feelings shall not exceed the prescribed amount.

Evidence
7 (1) In any proceedings under Article 31, a certificate signed by or on behalf of a Minister of the Crown or a Northern Ireland department and certifying that any conditions or requirements specified in the certificate—
(a) were imposed by that Minister or that department (as the case may be), and
(b) were in operation at a time or throughout a time so specified,
is conclusive evidence of the matters certified.
(2) A document purporting to be such a certificate is to be—
(a) received in evidence; and
(b) deemed to be such a certificate unless the contrary is proved.

Part III Discrimination in General Qualifications Bodies

Restriction on proceedings for breach of Chapter III of Part III
8 (1) Except as provided by Article 37A, no civil or criminal proceedings may be brought against any person in respect of an act merely because the act is unlawful under Chapter III of Part III.
(2) Sub-paragraph (1) does not prevent the making of an application for judicial review.

Period within which proceedings must be brought
9 (1) A county court shall not consider a claim under Article 37A unless proceedings in respect of the claim are instituted before the end of the period of six months beginning when the act complained of was done.
(2) If, in relation to proceedings or prospective proceedings under Article 37A, the dispute concerned is referred for conciliation in pursuance of arrangements under Article 42 before the end of the period of six months mentioned in sub-paragraph (1), the period of six months allowed by that sub-paragraph shall be extended by two months.
(3) A court may consider any claim under Article 37A which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.
(4) For the purposes of sub-paragraph (1)—
(a) if an unlawful act of discrimination is attributable to a term in a contract, that act is to be treated as extending throughout the duration of the contract;
(b) any act extending over a period shall be treated as done at the end of that period; and
(c) a deliberate omission shall be treated as done when the person in question decided upon it.
(5) In the absence of evidence establishing the contrary, a person shall be taken for the purposes of this paragraph to decide upon an omission—
(a) when he does an act inconsistent with doing the omitted act; or
(b) if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done.

Evidence
10 (1) In any proceedings under Article 37A, a certificate signed by or on behalf of a Minister of the Crown or a Northern Ireland department and certifying that any conditions or requirements specified in the certificate—
(a) were imposed by that Minister or that department (as the case may be), and
(b) were in operation at a time or throughout a time so specified,
is conclusive evidence of the matters certified.
(2) A document purporting to be such a certificate is to be—
(a) received in evidence; and
(b) deemed to be such a certificate unless the contrary is proved.
Sch. 2 Pt. III inserted (23.4.2008) by Special Educational Needs and Disability (2005 Order) (Amendment) (General Qualifications Bodies) (Alteration of Premises and Enforcement) Regulations (Northern Ireland) 2008 (S.R. 2008/177), reg. 4(3)
Words in Sch. 2 sidenote inserted (23.4.2008) by Special Educational Needs and Disability (2005 Order) (Amendment) (General Qualifications Bodies) (Alteration of Premises and Enforcement) Regulations (Northern Ireland) 2008 (S.R. 2008/177), reg. 4(2)

SCHEDULE 3 PREMISES OCCUPIED BY EDUCATIONAL INSTITUTIONS UNDER LEASES
Article 32(5)

Failure to obtain consent
1 If any question arises as to whether a responsible body has failed to comply with the duty imposed by Article 30 or Article 30A(5) , by failing to make a particular alteration to premises, any constraint attributable to the fact that the premises are occupied by the educational institution under a lease is to be ignored unless the responsible body has applied to the lessor in writing for consent to the making of the alteration.
mod. by SR 2005/371
Words in Sch. 3 para. (1) inserted (10.8.2006 for certain purposes and 1.9.2006 otherwise) by Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education) Regulations (Northern Ireland) 2006 (S.R. 2006/332), regs. 1, 16

Reference to court
2 (1) If the responsible body has applied in writing to the lessor for consent to the alteration and—
(a) that consent has been refused, or
(b) the lessor has made his consent subject to one or more conditions,
that body or a disabled person who has an interest in the proposed alteration to the premises being made, may refer the matter to a county court.
(2) On such a reference the court must determine whether the lessor's refusal was unreasonable or (as the case may be) whether the condition is, or any of the conditions are, unreasonable.
(3) If the court determines—
(a) that the lessor's refusal was unreasonable, or
(b) that the condition is, or any of the conditions are, unreasonable,
it may make such declaration as it considers appropriate or an order authorising the responsible body to make the alteration specified in the order.
(4) An order under sub-paragraph (3) may require the responsible body to comply with conditions specified in the order.
mod. by SR 2005/371

Joining lessors in proceedings under Article 31
3 (1) In proceedings on a claim under Article 31, in a case to which this Schedule applies, the claimant or the responsible body concerned may ask the court to direct that the lessor be joined as a party to the proceedings.
mod. by SR 2005/371
(2) The request must be granted if it is made before the hearing of the claim begins.
(3) The court may refuse the request if it is made after the hearing of the claim begins.
(4) The request may not be granted if it is made after the court has determined the claim.
(5) If a lessor has been so joined as a party to the proceedings, the court may determine—
(a) whether the lessor has—
(i) refused consent to the alteration, or
(ii) consented subject to one or more conditions, and
(b) if so, whether the refusal or any of the conditions was unreasonable.
(6) If, under sub-paragraph (5), the court determines that the refusal or any of the conditions was unreasonable it may take one or more of the following steps—
(a) make such a declaration as it considers appropriate;
(b) make an order authorising the responsible body to make the alteration specified in the order;
(c) order the lessor to pay compensation to the complainant.
(7) An order under sub-paragraph (6)(b) may require the responsible body to comply with conditions specified in the order.
(8) If the court orders the lessor to pay compensation it may not order the responsible body to do so.

Regulations
4 Regulations may make provision as to circumstances in which—
(a) a lessor is to be taken for the purposes of Article 32 and this Schedule to have—
(i) withheld his consent;
(ii) withheld his consent unreasonably;
(iii) acted reasonably in withholding his consent;
(b) a condition subject to which a lessor has given his consent is to be taken to be reasonable;
(c) a condition subject to which a lessor has given his consent is to be taken to be unreasonable.

Sub-leases etc.
5 Regulations may make provision supplementing, or modifying, Article 32 or any provision made by or under this Schedule in relation to cases where the premises of the educational institution are occupied under a sub-lease or sub-tenancy.

SCHEDULE 3A PREMISES OCCUPIED BY GENERAL QUALIFICATIONS BODIES UNDER LEASES
Article 37B

Failure to obtain consent to alteration
1 If any question arises as to whether a general qualifications body has failed to comply with the duty imposed by Article 37 by failing to make a particular alteration to the premises, any constraint attributable to the fact that that general qualifications body occupies the premises under a lease is to be ignored unless that general qualifications body has applied to the lessor in writing for consent to the making of the alteration.

Reference to court
2 (1) If the general qualifications body has applied in writing to the lessor for consent to the alteration and—
(a) that consent has been refused, or
(b) the lessor has made his consent subject to one or more conditions,
that general qualifications body or a disabled person who has an interest in the proposed alteration to the premises being made, may refer the matter to a county court.
(2) On such a reference the court must determine whether the lessor's refusal was unreasonable or (as the case may be) whether the condition is, or any of the conditions are, unreasonable.
(3) If the court determines—
(a) that the lessor's refusal was unreasonable, or
(b) that the condition is, or any of the conditions are, unreasonable,
it may make such declaration as it considers appropriate or an order authorising the general qualifications body to make the alteration specified in the order.
(4) An order under sub-paragraph (3) may require the general qualifications body to comply with conditions specified in the order.

Joining lessors in proceedings under Article 37A
3 (1) In any proceedings on a claim under Article 37A, in which a question arises as to whether a general qualifications body has failed to comply with the duty imposed by Article 37 by failing to make an alteration to premises occupied by the general qualifications body under a lease—
(a) the claimant, or
(b) the general qualifications body concerned,
may ask the court to direct that the lessor be joined as a party to the proceedings.
(2) The request shall be granted if it is made before the hearing of the claim begins.
(3) The court may refuse the request if it is made after the hearing of the claim begins.
(4) The request may not be granted if it is made after the court has determined the claim.
(5) If a lessor has been so joined as a party to the proceedings, the court may determine—
(a) whether the lessor has—
(i) refused consent to the alteration, or
(ii) consented subject to one or more conditions, and
(b) if so, whether the refusal or any of the conditions was unreasonable.
(6) If, under sub-paragraph (5), the court determines that the refusal or any of the conditions was unreasonable, it may take one or more of the following steps—
(a) make such declaration as it considers appropriate;
(b) make an order authorising the general qualifications body to make the alteration specified in the order;
(c) order the lessor to pay compensation to the claimant.
(7) An order under sub-paragraph (6)(b) may require the general qualifications body to comply with the conditions specified in the order.
(8) If the court orders the lessor to pay compensation it may not order the general qualifications body to do so.
Sch. 3A inserted (23.4.2008) by Special Educational Needs and Disability (2005 Order) (Amendment) (General Qualifications Bodies) (Alteration of Premises and Enforcement) Regulations (Northern Ireland) 2008 (S.R. 2008/177), reg. 6
Sch. 3A modified (23.4.2008) by Special Educational Needs and Disability (2005 Order) (Amendment) (General Qualifications Bodies) (Alteration of Premises and Enforcement) Regulations (Northern Ireland) 2008 (S.R. 2008/177), reg. 12(3)
Schedule 4—Amendments
Schedule 5—Amendments
Schedule 6—Repeals