Disability Discrimination Act 1995

[F1 Chapter 1 E+W+S SCHOOLS]

Textual Amendments

F1 Pt. IV: Chapter heading, cross-heading and s. 28A inserted (E.W.S.) (1.9.2002) by 2001 c. 10, s. 11(1) (with s. 43(13)); S.I. 2002/2217, art. 3, Sch. 1 Pt. 1

F2 Duties of responsible bodies E+W+S

Textual Amendments

F2 Pt. IV Ch. 1: Cross-heading and s. 28A inserted (E.W.S.) (1.9.2002) by 2001 c. 10, s. 11(1) (with s. 43(13)); S.I. 2002/2217, art. 3, Sch. 1 Pt. 1

Valid from 01/09/2002

[F3 28A Discrimination against disabled pupils and prospective pupils E+W+S

(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) The Secretary of State may by regulations prescribe services which are, or services which are not, to be regarded for the purposes of subsection (2) as being—

(a) education; or

(b) an associated service.

(4) It is unlawful for the body responsible for a school to discriminate against a disabled pupil by excluding him from the school, whether permanently or temporarily.

(5) The body responsible for a school is to be determined in accordance with Schedule 4A, and in the remaining provisions of this Chapter is referred to as the “responsible body”.

(6) In the case of an act which constitutes discrimination by virtue of section 55, this section also applies to discrimination against a person who is not disabled.]

Textual Amendments

F3 S. 28A inserted (E.W.S.) (1.9.2002) by 2001 c. 10, s. 11(1) (with s. 43(13)); S.I. 2002/2217, art. 3, Sch. 1 Pt. 1

Valid from 01/09/2002

[F4 28B Meaning of “discrimination” E+W+S

(1) For the purposes of section 28A, 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 section 28A, a responsible body also discriminates against a disabled person if—

(a) it fails, to his detriment, to comply with section 28C; 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) Subsections (6) to (8) apply in determining whether, for the purposes of this section—

(a) less favourable treatment of a person, or

(b) failure to comply with section 28C,

is justified.

(6) Less favourable treatment of a person is justified if it is the result of a permitted form of selection.

(7) Otherwise, less favourable treatment, or a failure to comply with section 28C, 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 subsection (1)—

(a) the responsible body is under a duty imposed by section 28C 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 subsection (7) unless that treatment would have been justified even if it had complied with that duty.]

Textual Amendments

F4 S. 28B inserted (E.W.S.) (1.9.2002) by 2001 c. 10, s. 12 (with s. 43(13)); S.I. 2002/2217, art. 3, Sch. 1 Pt. 1

Valid from 01/09/2002

[F5 28C Disabled pupils not to be substantially disadvantaged E+W+S

(1) The responsible body for a school must 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) Regulations may make provision, for the purposes of this section—

(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.

(4) In considering whether it is reasonable for it to have to take a particular step in order to comply with its duty under subsection (1), a responsible body must have regard to any relevant provisions of a code of practice issued under section 53A.

(5) Subsection (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 subsection (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 section 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.]

Textual Amendments

F5 S. 28C inserted (E.W.S.) (1.9.2002) by 2001 c. 10, s. 13 (with s. 43(13)); S.I. 2002/2217, art. 3, Sch. 1 Pt. I

Modifications etc. (not altering text)

C1 S. 28C: Functions of a local education authority made exercisable by authorised persons (1.4.2002) by S.I. 2002/928, art. 3, Sch. 3 para. (q)

[F6 28D Accessibility strategies and plans E+W+S

(1) Each local education authority must prepare, in relation to schools for which they are the responsible body—

(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) An accessibility strategy must be in writing.

(4) Each local education authority must keep their accessibility strategy under review during the period to which it relates and, if necessary, revise it.

(5) It is the duty of each local education authority to implement their accessibility strategy.

(6) An inspection under section 38 of the Education Act 1997 (inspections of local education authorities) may extend to the performance by a local education authority of their functions in relation to the preparation, review, revision and implementation of their accessibility strategy.

(7) Subsections (8) to (13) apply to—

(a) maintained schools;

(b) independent schools; and

(c) special schools which are not maintained special schools but which are approved by the Secretary of State, or by the National Assembly, under section 342 of the Education Act 1996.

(8) The responsible body must prepare—

(a) an accessibility plan;

(b) further such plans at such times as may be prescribed.

(9) An accessibility plan 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.

(10) An accessibility plan must be in writing.

(11) During the period to which the plan relates, the responsible body must keep its accessibility plan under review and, if necessary, revise it.

(12) It is the duty of the responsible body to implement its accessibility plan.

(13) An inspection under the School Inspections Act 1996 may extend to the performance by the responsible body of its functions in relation to the preparation, publication, review, revision and implementation of its accessibility plan.

(14) For a maintained school, the duties imposed by subsections (8) to (12) are duties of the governing body.

(15) Regulations may prescribe services which are, or services which are not, to be regarded for the purposes of this section as being—

(a) education; or

(b) an associated service.

(16) In this section and in section 28E, “local education authority” has the meaning given in section 12 of the Education Act 1996.

(17) In relation to Wales—

• “prescribed” means prescribed in regulations; and

• “regulations” means regulations made by the National Assembly.

(18) “Disabled pupil” includes a disabled person who may be admitted to the school as a pupil.

(19) “Maintained school” and “independent school” have the meaning given in section 28Q(5).]

Textual Amendments

F6 S. 28D inserted (E.W.S.) (1.7.2002 for specified purposes and otherwise 1.9.2002 for E.S.; andprosp. for W.) by 2001 c. 10, ss. 14(1), 43(3) (with s. 43(13)); S.I. 2002/1721, art. 4, Sch. Pt. II; S.I. 2002/2217, art. 4, Sch. 1 Pt. II

Modifications etc. (not altering text)

C2 S. 28D(1)-(3)(5)(6): Functions of a local education authority made exercisable by authorised persons (E.) (1.4.2002) by S.I. 2002/928, art. 3, Sch. 3 para. (r)

[F7 28E Accessibility strategies and plans: procedure E+W+S

(1) In preparing their accessibility strategy, a local education authority must have regard to—

(a) the need to allocate adequate resources for implementing the strategy; and

(b) any guidance issued 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.

(2) A local education authority must have regard to any guidance issued as to compliance with the requirements of section 28D(4).

(3) Guidance under subsection (1)(b) or (2) may be issued—

(a) for England, by the Secretary of State; and

(b) for Wales, by the National Assembly.

(4) In preparing an accessibility plan, the responsible body must have regard to the need to allocate adequate resources for implementing the plan.

(5) If the Secretary of State asks for a copy of—

(a) the accessibility strategy prepared by a local education authority in England, or

(b) the accessibility plan prepared by the proprietor of an independent school (other than [F8 an Academy]) in England,

the strategy or plan must be given to him.

(6) If the National Assembly asks for a copy of—

(a) the accessibility strategy prepared by a local education authority in Wales, or

(b) the accessibility plan prepared by the proprietor of an independent school [F9 (other than an Academy)] in Wales,

the strategy or plan must be given to it.

(7) If asked to do so, a local education authority must make a copy of their accessibility strategy available for inspection at such reasonable times as they may determine.

(8) If asked to do so, the proprietor of an independent school which is not [F10 an Academy] must make a copy of his accessibility plan available for inspection at such reasonable times as he may determine.]

Textual Amendments

F7 S. 28E inserted (E.W.S.) (1.7.2002 for specified purposes and otherwise 1.9.2002 for E.S. and 8.10.2003. for W.) by 2001 c. 10, ss. 15, 43(3) (with s. 43(13)); S.I. 2002/1721, art. 4, Sch. Pt. II; S.I. 2002/2217, art. 4, Sch. 1 Pt. II; S.I. 2003/2532, art. 2, Sch.

F8 Words in s. 28E(5)(b) substituted (26.7.2002) by 2002 c. 32, s. 65, Sch. 7 para. 5(2)(a) (with ss. 210(8), 214(4)); S.I. 2002/2002, art. 2

F9 Words in s. 28E(6)(b) inserted (26.7.2002) by 2002 c. 32, s. 65, Sch. 7 para. 5(2)(b) (with ss. 210(8), 214(4)); S.I. 2002/2002, art. 2

F10 Words in s. 28E(8) substituted (26.7.2002) by 2002 c. 32, s. 65, Sch. 7 para. 5(2)(c) (with ss. 210(8), 214(4)); S.I. 2002/2002, art. 2

Valid from 01/09/2002

[F11 Residual duty of education authorities] E+W+S

Textual Amendments

F11 Pt. IV Ch. 1: Cross-heading and ss. 28F, 28G inserted (E.W.S.) (1.9.2002) by 2001 c. 10, s. 16 (with s. 43(13)); S.I. 2002/2217, art. 3, Sch. 1 Pt. 1

[F12 28F Duty of education authorities not to discriminate E+W+S

(1) This section applies to—

(a) the functions of a local education authority under the Education Acts; and

(b) the functions of an education authority under—

(i) the Education (Scotland) Act 1980;

(ii) the Education (Scotland) Act 1996; and

(iii) the Standards in Scotland’s Schools etc. Act 2000.

(2) But it does not apply to any prescribed function.

(3) In discharging a function to which this section applies, it is unlawful for the authority 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 section applies is unlawful as a result of subsection (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 section 55, this section also applies to discrimination against a person who is not disabled.

(6) In this section and section 28G, “local education authority” has the meaning given in section 12 of the Education Act 1996.

(7) “The Education Acts” has the meaning given in section 578 of the Education Act 1996.

(8) In this section and section 28G, “education authority” has the meaning given in section 135(1) of the Education (Scotland) Act 1980.]

Textual Amendments

F12 S. 28F inserted (E.W.S) (1.9.2002) by 2001 c. 10, s. 16 (with s. 43(13)); S.I. 2002/2217, art. 3, Sch. 1 Pt. 1

Prospective

[F13 28G Residual duty: supplementary provisions E+W+S

(1) Section 28B applies for the purposes of section 28F as it applies for the purposes of section 28A with the following modifications—

(a) references to a responsible body are to be read as references to an authority; and

(b) references to section 28C are to be read as references to subsections (2) to (4).

(2) Each authority must take such steps as it is reasonable for it to have to take to ensure that, in discharging any function to which section 28F 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 the authority to—

(a) remove or alter a physical feature; or

(b) provide auxiliary aids or services.

(4) This section imposes duties only for the purpose of determining whether an authority has discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such.

(5) A reference in sections 28I, [F14 28IA, ] 28K(1), 28M(6) and 28P to a responsible body is to be read as including a reference to a [F15 local authority] in relation to a function to which section 28F applies.

(6) A reference in section 28N and 28P to a responsible body is to be read as including a reference to an education authority in relation to a function to which section 28F applies.

(7) “Authority” means—

(a) in relation to England and Wales, a [F15 local authority]; and

(b) in relation to Scotland, an education authority.]

Textual Amendments

F13 S. 28G inserted (E.W.S.) (1.9.2002) by 2001 c. 10, s. 16 (with s. 43(13)); S.I. 2002/2217, art. 3, Sch. 1 Pt. 1

F14 Words in s. 28G(5) inserted (W.) (prosp.) by Education (Wales) Measure (2009 nawm 5), ss. 23, 26, {Sch. para. 7}

F15 Words in s. 28G(5)(7)(a) substituted (5.5.2010) by The Local Education Authorities and Children's Services Authorities (Integration of Functions) Order 2010 (S.I. 2010/1158), art. 1, Sch. 2 para. 40(6)

[F16 Enforcement: England and Wales] E+W+S

Textual Amendments

F16 Pt. IV Ch. 1: Cross-heading and s. 28H inserted (E.W.S.) (1.9.2002) by 2001 c. 10, s. 17(1) (with s. 43(13)); S.I. 2002/2217, art. 3, Sch. 1 Pt. 1

Valid from 01/09/2002

[F17 28H Special Educational Needs and Disability Tribunal E+W+S

(1) The Special Educational Needs Tribunal—

(a) is to continue to exist; but

(b) after the commencement date is to be known as the Special Educational Needs and Disability Tribunal.

(2) It is referred to in this Chapter as “the Tribunal”.

(3) In addition to its jurisdiction under Part 4 of the Education Act 1996, the Tribunal is to exercise the jurisdiction conferred on it by this Chapter.

(4) “Commencement date” means the day on which section 17 of the Special Educational Needs and Disability Act 2001 comes into force.]

Textual Amendments

F17 S. 28H inserted (E.W.S.) (1.9.2002) by 2001 c. 10, s. 17(1) (with s. 43(13)); S.I. 2002/2217, art. 3, Sch. 1 Pt. 1

Prospective

[F18 28I Jurisdiction and powers of the Tribunal [F19 - England and Wales ] E+W+S

(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 section 58 to be treated as having discriminated against a person (“A”) in such a way,

may be made to the [F20 appropriate tribunal] by A’s parent.

(2) But this section does not apply to a claim to which section 28K or 28L applies.

(3) If the [F20 appropriate tribunal] considers that a claim under subsection (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 subsection (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.

[F21 (5) Subject to regulations under section 28J(8), the appropriate tribunal—

(a) for a claim against the responsible body for a school in England, is the [F22 First-tier Tribunal],

(b) for a claim against the responsible body for a school in Wales, is the Welsh Tribunal.]]

Textual Amendments

F18 S. 28I inserted (E.W.S.) (1.9.2002) by 2001 c. 10, s. 18 (with s. 43(13)); S.I. 2002/2217, art. 3, Sch. 1 Pt. 1

F19 S. 28I: words in heading inserted (W.) (prosp.) by Education (Wales) Measure 2009 (nawm 5), ss. 9(1), 26

F20 Words in s. 28I(1)(3) substituted (1.9.2003) by 2002 c. 32, s. 195, Sch. 18 para. 9(2) (with ss. 210(8), 214(4), Sch. 18 para. 17); S.I. 2002/3185, art. 6, Sch. Pt. III

F21 S. 28I(5) inserted (1.9.2003) by 2002 c. 32, s. 195, Sch. 18 para. 9(3) (with ss. 210(8), 214(4), Sch. 18 para. 17); S.I. 2002/3185, art. 6, Sch. Pt. III

F22 Words in s. 28I(5)(a) substituted (3.11.2008) by The Transfer of Tribunal Functions Order 2008 (S.I. 2008/2833), art. 9(1), Sch. 3 para. 116

Prospective

28IA Jurisdiction and powers of the Tribunal – Wales E+W

(1) A claim that a responsible body for a school in Wales—

(a) has discriminated against a person (“the relevant person”) in a way which is made unlawful under this Chapter, or

(b) is by virtue of section 58 to be treated as having discriminated against the relevant person in such a way,

may be made to the Welsh Tribunal by that relevant person.

(2) But this section does not apply to a claim to which section 28K or 28L applies.

(3) The relevant person's right to claim is exercisable concurrently with the right of the relevant person's parent under section 28I.

(4) If the Welsh Tribunal considers that a claim under subsection (1) is well founded—

(a) it may declare that the relevant person 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.

(5) The power conferred by subsection (4)(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.

(6) The exercise of rights under this section is subject to provision made by regulations under sections 28IB and 28J.

Prospective

28IB Case friends — Wales E+W

(1) The Welsh Ministers may by regulations provide for—

(a) a disabled child in a local authority area in Wales to have a person to make representations on behalf of the disabled child with a view to avoiding or resolving disagreements about matters made unlawful under this chapter or to be treated as discrimination by virtue of section 58, and

(b) a relevant person (within the meaning of section 28IA) to have another person to exercise the relevant person's rights under that section on the relevant person's behalf.

(2) A person exercising rights or making representations on behalf of a disabled child or a relevant person under subsection (1) is referred to in this Part as a “case friend”.

(3) A case friend must—

(a) make representations and exercise rights fairly and competently;

(b) have no interest adverse to that of the disabled child or relevant person;

(c) ensure that all steps and decisions taken by the case friend are for the benefit of the disabled child or relevant person and take account of the disabled child or relevant person's views.

(4) Regulations made under this section may (among other things)—

(a) confer functions on the Welsh Tribunal;

(b) make provision about procedures in relation to case friends;

(c) make provision about the appointment and removal of case friends;

(d) specify the circumstances in which a person may or may not act as a case friend;

(e) specify the circumstances in which a relevant person (within the meaning of section 28IA) must have a case friend;

(f) specify further requirements in respect of the conduct of case friends.

(5) In this section, sections 28IC, 28ID and 28IE, a disabled child means any disabled person who is a pupil (or a prospective pupil) of—

(a) a maintained school or maintained nursery school,

(b) a pupil referral unit,

(c) an independent school, or

(d) a special school not maintained by a local authority.

(6) In this section, sections 28IC, 28ID and 28IE "local authority" has the meaning given by section 579(1) of the Education Act 1996.

Prospective

28IC Advice and information — Wales E+W

(1) A local authority in Wales must arrange for any disabled child in their area and for the case friend of any such child to be provided with advice and information about matters relating to disability discrimination in schools.

(2) In making the arrangements, the authority must have regard to any guidance given by the Welsh Ministers.

(3) The arrangements must comply with any provisions made in regulations by the Welsh Ministers that relate to the arrangements.

(4) The authority must take such steps as they consider appropriate for making the services provided under subsection (1) known to—

(a) disabled children in their area,

(b) parents of disabled children in their area,

(c) head teachers and proprietors of schools in their area, and

(d) such other persons as they consider appropriate.

Prospective

28ID Resolution of disputes — Wales E+W

(1) A local authority in Wales must make arrangements with a view to avoiding or resolving disagreements between responsible bodies and disabled children in their area about matters made unlawful under this chapter or to be treated as discrimination by virtue of section 58.

(2) The arrangements must provide for the appointment of independent persons with the functions of facilitating the avoidance or resolution of such disagreements.

(3) In making the arrangements, the authority must have regard to any guidance given by the Welsh Ministers.

(4) The arrangements must comply with any provisions made in regulations by the Welsh Ministers that relate to the arrangements.

(5) The authority must take such steps as they consider appropriate for making the arrangements under subsection (1) known to—

(a) disabled children in their area,

(b) parents of disabled children in their area,

(c) head teachers and proprietors of schools in their area, and

(d) such other persons as they consider appropriate.

(6) The arrangements cannot affect the entitlement of any person to make a claim to the Welsh Tribunal, and the authority must take such steps as they consider appropriate to make that fact known to disabled children, to parents of disabled children and to case friends for disabled children in their area.

Prospective

28IE Independent advocacy services — Wales E+W

(1) Every local authority in Wales must—

(a) make arrangements for the provision of independent advocacy services in their area;

(b) refer any disabled child in their area who requests independent advocacy services to a service provider;

(c) refer any person who is a case friend for a disabled child in their area and who requests independent advocacy services to a service provider.

(2) In this section “independent advocacy services” are services providing advice and assistance (by way of representation or otherwise) to a disabled child who is—

(a) making, or intending to make a claim that a responsible body—

(i) has discriminated against that child in a way which is unlawful under this Chapter, or

(ii) is by virtue of section 58 to be treated as having discriminated against that child in such a way; or

(b) considering whether to make such a claim; or

(c) taking part in or intending to take part in dispute resolution arrangements made under section 28ID.

(3) In making arrangements under this section, every local education authority must have regard to the principle that any services provided under the arrangements must be independent of any person who is—

(a) the subject of a claim to the Welsh Tribunal, or

(b) involved in investigating or adjudicating on such a claim.

(4) The arrangements must comply with any provisions made in regulations by the Welsh Ministers that relate to the arrangements.

(5) Every local authority in Wales must take such steps as they consider appropriate for making the arrangements under this section known to—

(a) disabled children in their area,

(b) parents of disabled children in their area,

(c) head teachers and proprietors of schools in their area, and

(d) such other persons as they consider appropriate.

(6) The arrangements may include provision for payments to be made to, or in relation to, any person carrying out functions in accordance with the arrangements.

(7) A local authority must have regard to any guidance given from time to time by the Welsh Ministers.

[F23 28J Procedure E+W+S

(1) Regulations may 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.

(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 10(3) of Schedule 3) 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 disclosure 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) Unless made with the agreement of the National Assembly, regulations made under this section do not apply to Wales.

(5) The Secretary of State may pay such allowances for the purpose of or in connection with the attendance of persons at the Tribunal as he may, with the consent of the Treasury, determine.

(6) In relation to Wales, the power conferred by subsection (5) may be exercised only with the agreement of the National Assembly.

(7) Part 1 of the Arbitration Act 1996 does not apply to proceedings before the Tribunal but regulations may make provision, in relation to such proceedings, corresponding to any provision of that Part.

(8) The regulations may make provision for a claim under this Chapter to be heard, in prescribed circumstances, with an appeal under Part 4 of the Education Act 1996.

(9) A person who without reasonable excuse fails to comply with—

(a) a requirement in respect of the disclosure or inspection of documents imposed by the regulations by virtue of subsection (2)(f), or

(b) a requirement imposed by the regulations by virtue of subsection (2)(g),

is guilty of an offence.

(10) A person guilty of an offence under subsection (9) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(11) Part 3 of Schedule 3 makes further provision about enforcement of this Chapter and about procedure.]

Textual Amendments

F23 S. 28J inserted (1.7.2002 for certain purposes otherwise 1.9.2002) by 2001 c. 10, s. 19(1) (with s. 43(13)); S.I. 2002/1721, art. 3, Sch. Pt. I; S.I. 2002/2217, art. 3, Sch. 1 Pt. I

Valid from 03/11/2008

[F24 28JA Appeal from the Welsh Tribunal to the Upper Tribunal E+W+S

(1) A party to any proceedings under this Chapter before the Welsh Tribunal may appeal to the Upper Tribunal on any point of law arising from a decision made by the Welsh Tribunal in those proceedings.

(2) An appeal may be brought under subsection (1) only if, on an application made by the party concerned, the Welsh Tribunal or the Upper Tribunal has given its permission for the appeal to be brought.

(3) Section 12 of the Tribunals, Courts and Enforcement Act 2007 (proceedings on appeal to Upper Tribunal) applies in relation to appeals to the Upper Tribunal under this section as it applies in relation to appeals to it under section 11 of that Act, but as if references to the First-tier Tribunal were references to the Welsh Tribunal.]

Textual Amendments

F24 S. 28JA inserted (E.W.S.) (3.11.2008) by The Transfer of Tribunal Functions Order 2008 (S.I. 2008/2833), art. 9(1), Sch. 3 para. 118

Prospective

[F25 28K Admissions E+W+S

(1) If the condition mentioned in subsection (2) is satisfied, this section applies to a claim in relation to an admissions decision 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 section 58 to be treated as having discriminated against a person (“A”) in such a way.

(2) The condition is that arrangements (“appeal arrangements”) have been made—

(a) under section 94 of the School Standards and Framework Act 1998, or

(b) under an agreement entered into between the responsible body for a city academy and the Secretary of State under section 482 of the Education Act 1996,

enabling an appeal to be made against the decision by A’s parent.

(3) The claim must be made under the appeal arrangements.

(4) The body hearing the claim has the powers which it has in relation to an appeal under the appeal arrangements.

(5) “Admissions decision” means—

(a) a decision of a kind mentioned in section 94(1) or (2) of the School Standards and Framework Act 1998;

(b) a decision as to the admission of a person to a city academy taken by the responsible body or on its behalf.]

Textual Amendments

F25 S. 28K inserted (E.W.S.) (prosp.) by 2001 c. 10, ss. 20, 43(3) (with s. 43(13))

Prospective

[F26 28L Exclusions E+W+S

(1) If the condition mentioned in subsection (2) is satisfied, this section applies to a claim in relation to an exclusion decision 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 section 58 to be treated as having discriminated against a person (“A”) in such a way.

(2) The condition is that arrangements (“appeal arrangements”) have been made—

(a) under section 67(1) of the School Standards and Framework Act 1998, or

(b) under an agreement entered into between the responsible body for a city academy and the Secretary of State under section 482 of the Education Act 1996,

enabling an appeal to be made against the decision by A or by his parent.

(3) The claim must be made under the appeal arrangements.

(4) The body hearing the claim has the powers which it has in relation to an appeal under the appeal arrangements.

(5) “Exclusion decision” means—

(a) a decision of a kind mentioned in section 67(1) of the School Standards and Framework Act 1998;

(b) a decision not to reinstate a pupil who has been permanently excluded from a city academy by its head teacher, taken by the responsible body or on its behalf.

(6) “Responsible body”, in relation to a maintained school, includes the discipline committee of the governing body if that committee is required to be established as a result of regulations made under paragraph 4 of Schedule 11 to the School Standards and Framework Act 1998.

(7) “Maintained school” has the meaning given in section 28Q(5).]

Textual Amendments

F26 S. 28L inserted (E.W.S.) (prosp.) by 2001 c. 10, ss. 21, 43(3) (with s. 43(13))

Prospective

[F27 28M Roles of the Secretary of State and the [F28 Welsh Ministers] E+W+S

(1) If the appropriate authority is satisfied (whether on a complaint or otherwise) that a responsible body—

(a) has acted, or is proposing to act, unreasonably in the discharge of a duty imposed by or under section 28D or 28E, or

(b) has failed to discharge a duty imposed by or under either of those sections,

it may give that body such directions as to the discharge of the duty as appear to it to be expedient.

[F29 (1A) If the Welsh Ministers are satisfied (whether on a complaint or otherwise) that a local authority—

(a) has acted, or is proposing to act, unreasonably in the discharge of a duty imposed by or under sections 28IC, 28ID or 28IE, or

(b) has failed to discharge a duty imposed by or under any of those sections,

they may give that body such directions as to the discharge of the duty as appear to them to be expedient.]

(2) Subsection (3) applies in relation to—

[F30 (a) schools approved under section 342 of the Education Act 1996 (non-maintained special schools); and]

(b) city academies.

(3) If the appropriate authority is satisfied (whether on a complaint or otherwise) that a responsible body—

(a) has acted, or is proposing to act, unreasonably in the discharge of a duty which that body has in relation to—

(i) the provision to the appropriate authority of copies of that body’s accessibility plan, or

(ii) the inspection of that plan, or

(b) has failed to discharge that duty,

it may give that body such directions as to the discharge of the duty as appear to it to be expedient.

(4) Directions may be given under subsection (1) [F32 , (1A) ] or (3) even if the performance of the duty is contingent upon the opinion of the responsible body.

(5) Subsection (6) applies if the [F33 First-tier Tribunal] [F34 [F35 or the Welsh Tribunal]] has made an order under section 28I(3).

(6) If the Secretary of State is satisfied (whether on a complaint or otherwise) that the responsible body concerned—

(a) has acted, or is proposing to act, unreasonably in complying with the order, or

(b) has failed to comply with the order,

he may give that body such directions as to compliance with the order as appear to him to be expedient.

[F36 (6A) Subsection (6B) applies if the Welsh Tribunal has made an order under section 28I(3) or section 28IA(4).

(6B) If the Welsh Ministers are satisfied (whether on a complaint or otherwise) that the responsible body concerned—

(a) has acted, or is proposing to act, unreasonably in complying with the order, or

(b) has failed to comply with the order,

they may give that body such directions as to compliance with the order as appear to them to be expedient.]

(7) Directions given under subsection (1), [F37 (1A), ](3) [F38 or ](6) [F39 or (6B) ]—

(a) may be varied or revoked by the directing authority; and

(b) may be enforced, on the application of the directing authority, by a mandatory order obtained in accordance with section 31 of the Supreme Court Act 1981.

[F40 (7A) The Secretary of State may not, unless subsection (7B) applies, give a direction under this section to a responsible body in England in respect of a matter that—

(a) has been complained about to a Local Commissioner in accordance with Chapter 2 of Part 10 of the Apprenticeships, Skills, Children and Learning Act 2009 (parental complaints against governing bodies etc.), or

(b) in the Secretary of State's opinion, could have been so complained about.

(7B) This subsection applies if—

(a) the Local Commissioner has made a recommendation to the responsible body under section 211(4) of the Apprenticeships, Skills, Children and Learning Act 2009 (statement following investigation) in respect of the matter, and

(b) the responsible body has not complied with the recommendation.]

(8) “Appropriate authority” means—

(a) in relation to England, the Secretary of State; and

(b) in relation to Wales, the [F41 Welsh Ministers].

(9) “Directing authority” means—

(a) the Secretary of State in relation to a direction given by him; and

(b) the [F42 Welsh Ministers] in relation to a direction given by [F42 them].]

Textual Amendments

F27 S. 28M inserted (E.W.S.) (1.9.2002 for certain purposes and 8.10.2003 in so far as not already in force) by 2001 c. 10, ss. 22, 43(3) (with s. 43(13)); S.I. 2002/2217, art. 3, Sch. 1 Pt. 1; S.I. 2003/2532, art. 2, Sch.

F28 S. 28M: words in heading substituted by The Government of Wales Act 2006 (Consequential Modifications and Transitional Provisions) Order 2007 (S.I. 2007/1388), arts. 1, 3, Sch. 1 para. 54(2), the amending provision coming into force immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see s. 161(5) of the Government of Wales Act 2006.

F29 S. 28M(1A) inserted (W.) (prosp.) by Education (Wales) Measure 2009 (nawm 5), ss. 15(2), 26 (as amended (5.5.2010) by S.I. 2010/1148, arts. 1, 5(2))

F30 S. 28M(2)(a) substituted (prosp.) by Education and Skills Act 2008 (c. 25), ss. 169, 173, Sch. 1 para. 3

F31 Words in s. 28M(2)(a) substituted by The Government of Wales Act 2006 (Consequential Modifications and Transitional Provisions) Order 2007 (S.I. 2007/1388), arts. 1, 3, Sch. 1 para. 54(3), the amending provision coming into force immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see s. 161(5) of the Government of Wales Act 2006.

F32 Word in s. 28M(4) inserted (W.) (prosp.) by Education (Wales) Measure 2009 (nawm 5), ss. 15(3), 26

F33 Words in s. 28M(5) substituted (3.11.2008) by The Transfer of Tribunal Functions Order 2008 (S.I. 2008/2833), art. 9(1), Sch. 3 para. 119

F34 Words in S. 28M(5) omitted (W.) (prosp.) by virtue of Education (Wales) Measure 2009 (nawm 5), ss. 15(4), 26

F35 Words in s. 28M(5) inserted (1.9.2003) by 2002 c. 32, s. 195, Sch. 18 para. 11 (with ss. 210(8), 214(4), Sch. 18 para. 17); S.I. 2002/3185, art. 6, Sch. Pt. III

F36 S. 28M(6A)(6B) inserted (W.) (prosp.) by Education (Wales) Measure 2009 (nawm 5), ss. 15(5), 26

F37 Word in s. 28M(7) inserted (W.) (prosp.) by Education (Wales) Measure 2009 (nawm 5), ss. 15(6), 26

F38 Word in s. 28M(7) repealed (W.) (prosp.) by Education (Wales) Measure 2009 (nawm 5), ss. 15(6), 26

F39 Words in s. 28M(7) inserted (W.) (prosp.) by Education (Wales) Measure 2009 (nawm 5), ss. 15(6), 26

F40 S. 28M(7A)(7B) inserted (19.4.2010 for specified purposes, 1.9.2010 for specified purposes, otherwise prosp.) by Apprenticeships, Skills, Children and Learning Act 2009 (c. 22), ss. 221(3), 269(4); S.I. 2010/303, art. 5, Sch. 4 (with arts. 8-12); S.I. 2010/1151, art. 4, Sch. 2 (with arts. 5 - 20)

F41 Words in s. 28M(8)(b) substituted by The Government of Wales Act 2006 (Consequential Modifications and Transitional Provisions) Order 2007 (S.I. 2007/1388), arts. 1, 3, Sch. 1 para. 54(4), the amending provision coming into force immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see s. 161(5) of the Government of Wales Act 2006.

F42 Words in s. 28M(9)(b) substituted by The Government of Wales Act 2006 (Consequential Modifications and Transitional Provisions) Order 2007 (S.I. 2007/1388), arts. 1, 3, Sch. 1 para. 54(5), the amending provision coming into force immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see s. 161(5) of the Government of Wales Act 2006.

Valid from 01/09/2002

[F43 Enforcement: Scotland] E+W+S

Textual Amendments

F43 Pt. IV Ch. 1: Cross-heading and s. 28N inserted (1.9.2002) by 2001 c. 10, s. 23 (with s. 43(13)); S.I. 2002/2217, art. 3, Sch. 1 Pt. 1

[F44 28N Civil proceedings E+W+S

(1) A claim that a responsible body in Scotland—

(a) has discriminated against a person in a way which is unlawful under this Chapter, or

(b) is by virtue of section 58 to be treated as having discriminated against a person in such a way,

may be made the subject of civil proceedings in the same way as any other claim for the enforcement of a statutory duty.

(2) Proceedings in Scotland may be brought only in a sheriff court.

(3) The remedies available in such proceedings are those which are available in the Court of Session other than an award of damages.

(4) Part 3 of Schedule 3 makes further provision about the enforcement of this Chapter and about procedure.

(5) In relation to civil proceedings in Scotland, in that Part of that Schedule—

(a) references to sections 28I, 28K and 28L, or any of them, are to be construed as a reference to this section;

(b) references to the Tribunal are to be construed as references to the sheriff court.]

Textual Amendments

F44 S. 28N inserted (E.W.S.) (1.9.2002) by 2001 c. 10, s. 23 (with s. 43(13)); S.I. 2002/2217, art. 3, Sch. 1 Pt. 1

Valid from 01/09/2002

[F45 Agreements relating to enforcement] E+W+S

Textual Amendments

F45 Pt. IV Ch. 1: Cross-heading and s. 28P inserted (1.9.2002) by 2001 c. 10, s. 24 (with s. 43(13)); S.I. 2002/2217, art. 3, Sch. 1 Pt. 1

Prospective

[F46 28P Validity and revision of agreements of responsible bodies E+W+S

(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) Paragraphs (b) and (c) of subsection (1) do not apply to an agreement settling a claim—

(a) under section 28I [F47 , 28IA ] or 28N; or

(b) to which section 28K or 28L applies.

(3) On the application of any person interested in an agreement to which subsection (1) applies, a county court or a sheriff court may make such order as it thinks just for modifying the agreement to take account of the effect of subsection (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) Subsection (4) applies subject to any rules of court providing for notice to be dispensed with.

(6) An order under subsection (3) may include provision as respects any period before the making of the order.]

Textual Amendments

F46 S. 28P inserted (E.W.S.) (1.9.2002) by 2001 c. 10, s. 24 (with s. 43(13)); S.I. 2002/2217, art. 3, Sch. 1 Pt. 1

F47 Words in s. 28P(2)(a) inserted (W.) (prosp.) by Education (Wales) Measure (2009 nawm 5), ss. 23, 26, {Sch. para. 8}

Valid from 01/09/2002

[F48 Interpretation of Chapter 1] E+W+S

Textual Amendments

F48 Pt. IV Ch. 1: Cross-heading and s. 28Q inserted (1.9.2002) by 2001 c. 10, s. 25 (with s. 43(13)); S.I. 2002/2217, art. 3, Sch. 1 Pt. 1

Prospective

[F49 28Q Interpretation E+W+S

(1) This section applies for the purpose of interpreting this Chapter.

(2) “Disabled pupil” means a pupil who is a disabled person.

(3) “Pupil”—

(a) in relation to England and Wales, has the meaning given in section 3(1) of the Education Act 1996; and

(b) in relation to Scotland, has the meaning given in section 135(1) of the Education (Scotland) Act 1980.

(4) Except in relation to Scotland (when it has the meaning given in section 135(1) of the Education (Scotland) Act 1980) “school” means—

(a) a maintained school;

(b) a maintained nursery school;

(c) an independent school;

[F50 (d) a school approved under section 342 of the Education Act 1996 (non-maintained special schools);]

(e) a pupil referral unit.

(5) In subsection (4)—

• “maintained school” has the meaning given in section 20(7) of the School Standards and Framework Act 1998;

• “maintained nursery school” has the meaning given in section 22(9) of the School Standards and Framework Act 1998;

• “independent school” has the meaning given in section 463 of the Education Act 1996; and

• “pupil referral unit” has the meaning given in section 19(2) of the Education Act 1996.

(6) “Responsible body” has the meaning given in section 28A(5).

(7) “Governing body”, in relation to a maintained school, means the body corporate (constituted in accordance with [F52 regulations under section 19 of the Education Act 2002]]) which the school has as a result of [F53 that section].

(8) “Parent”—

(a) in relation to England and Wales, has the meaning given in section 576 of the Education Act 1996; and

(b) in relation to Scotland, has the meaning given in section 135(1) of the Education (Scotland) Act 1980.

(9) In relation to England and Wales “permitted form of selection” means—

(a) if the school is a maintained school which is not designated as a grammar school under section 104 of the School Standards and Framework Act 1998, any form of selection mentioned in section 99(2) or (4) of that Act;

(b) if the school is a maintained school which is so designated, any of its selective admission arrangements;

(c) if the school is an independent school, any arrangements which make provision for any or all of its pupils to be selected by reference to general or special ability or aptitude, with a view to admitting only pupils of high ability or aptitude.

(10) In relation to Scotland, “permitted form of selection” means—

(a) if the school is managed by an education authority, such arrangements as have been approved by the Scottish Ministers for the selection of pupils for admission;

(b) if the school is an independent school or a self-governing school, any arrangements which make provision for any or all of its pupils to be selected by reference to general or special ability or aptitude, with a view to admitting only pupils of high ability or aptitude.

(11) In subsection (10), “education authority”, “independent school” and “self-governing school” have the meaning given in section 135(1) of the Education (Scotland) Act 1980.

(12) F54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(13) “Accessibility strategy” and “accessibility plan” have the meaning given in section 28D.

(14) F55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F49 S. 28Q inserted (E.W.S.) (1.9.2002) by 2001 c. 10, s. 25 (with s. 43(13)); S.I. 2002/2217, art. 3, Sch. 1 Pt. 1

F50 S. 28Q(4)(d) substituted (prosp.) by Education and Skills Act 2008 (c. 25), ss. 169, 173, Sch. 1 para. 4

F51 Words in s. 28Q(4)(d) substituted by The Government of Wales Act 2006 (Consequential Modifications and Transitional Provisions) Order (S.I. 2007/1388), arts. 1, 3, {Sch. 1 para. 55(2)}, the amending provision coming into force immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see s. 161(5) of the Government of Wales Act 2006.

F52 Words in s. 28Q(7) substituted (1.9.2003 except in relation to W. and 31.10.2005 for W.) by 2002 c. 32, ss. 215(1), 216, Sch. 21 para. 28(a) (with ss. 210(8), 214(4)); S.I. 2003/1667, art. 4; S.I. 2005/2910, art. 4, Sch.

F53 Words in s. 28Q(7) substituted (1.9.2003 except in relation to W. and 31.10.2005 for W.) by 2002 c. 32, ss. 215(1), 216, Sch. 21 para. 28(a) (with ss. 210(8), 214(4)); S.I. 2003/1667, art. 4; S.I. 2005/2910, art. 4, Sch.

F54 S. 28Q(12) ceased to have effect (26.7.2002) and repealed (26.7.2002 for E.S and 1.8.2003 for W.) by 2002 c. 32, s. 65, 215(2), 216, Sch. 7 para. 5(5), Sch. 22 Pt. III (with ss. 210(8), 214(4)); S.I. 2002/2002, arts. 2, 3; S.I. 2003/1718, art. 4, Sch. Pt. I

F55 S. 28Q(14) omitted by virtue of The Government of Wales Act 2006 (Consequential Modifications and Transitional Provisions) Order 2007 (S.I. 2007/1388), arts. 1, 3, Sch. 1 para. 55(3), the amending provision coming into force immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see s. 161(5) of the Government of Wales Act 2006.