Cloisters: Equality & Human Rights in Practice
School attendance awards
Some schools have started trying to encourage 100% attendance by pupils by having attendance awards schemes. There are various ways in which a school can set up such schemes, and the precise way will be a matter for the school. However, certain methods of encouraging full attendance are based on a theory of group awards. So if a class has a 100% attendance this gets them all a reward, in the form of a treat. The idea is that there is peer group pressure on those who might otherwise not attend because they will let the rest of the class down.
To an equality practitioner there is an obvious risk that this plan will create inequality for (and inspire harassment of) pupils whose disabilities mean that they may have unplanned absences. There appears to be no guidance from the Department for Education (DfE) on avoiding the risks inherent in using these schemes. When challenged on this point, the DfE’s unsatisfactory response was to tweet:
“This is a matter for the schools.”
Failure of the DfE and the Public Sector Equality Duty (PSED)
The reply illustrates a failure on the part of the DfE to take seriously its duty to have due regard under section 149 Equality Act 2010. The section is long, but essentially provides:
“(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”
It is important to remember that these are separate goals with equal weight accorded to each.
The relevant protected characteristics are age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex; sexual orientation.
In order to achieve the advance of equality of opportunity, the DfE must have due regard to the need to—
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
There is explicit recognition in section 149 EA 2010 that the steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities.
Paragraph 6.8 of the Technical Guidance for Schools produced by the Equalities and Human Rights Commission is also relevant. It states:
“The duty to make positive adjustments requires a school to take positive steps”
To say “this is a matter for the schools” ignores the fact that the Secretary of State, in deciding whether to issue guidance, should have due regard to the need to advance equality of opportunity. Children with absences related to their disabilities do not have the same opportunity to gain class rewards along with their classmates if no guidance exists. The DfE’s response fails to recognise that it should be having due regard to the need to foster good relations between children without disabilities in a class and children with disabilities. Stigmatising the latter because they have deprived the whole class of a reward due to non-attendance is hardly going to foster good relations between the children.
But why is this not a matter simply for the schools? This raises the other aspect of the lack of guidance. We know that the government is desperate to “avoid red tape”. However, devolution of legal responsibilities to the individual schools is more likely to create red tape than avoid it.
The government’s position is that each school has the duty to have due regard. Plainly they do. However the government is placed in the best position to avoid each school having to develop its own reaction to the existence of children with disabilities and their effect on the awards scheme. This can only lead to a situation where children with disability will be treated differently depending on which school they attend. Children with disabilities should not be subject to a postcode lottery.
Part of the DfE’s function is to issue guidance. Governing bodies must have regard to guidance issued under this section. If the DfE simply produced guidance on this point, not only would it result in consistency, but it would also mean that the needs of children with disabilities would be more likely to be met. A lack of guidance makes it more likely that schools will not address this issue. If guidance were produced by the DfE, it is obviously more likely schools would follow it.
What guidance is available?
In its document Supporting Pupils at School with Medical Conditions, issued pursuant to section 100 of the Children and Families Act 2014, the DfE states:
“Some children with medical conditions may be disabled. Where this is the case governing bodies must comply with their duties under the Equality Act 2010.” (p 5)
“Governing Bodies duties towards disabled children and adults are included in the Equality Act 2010, and the key elements are as follows:
* They must not discriminate against, harass or victimise disabled children and young people;
* They must make reasonable adjustments to ensure that disabled children and young people are not at a substantial disadvantage compared with their peers. This duty is anticipatory: adjustments must be planned and put in place in advance in order to prevent that disadvantage.” (p21)
Another function of the DfE is to issue advice. The Advice on School Attendance (2011) deals with attendance codes in section 1. This makes no mention of the Equality Act 2010 at all. It was revised in 2014, but with no improvement. It says:
“The use of the national absence and attendance codes is not a legal requirement. The codes enable schools to record and monitor attendance and absence in a consistent way which complies with the regulations. They are also used for collecting statistics through the School Census System. The data help schools, local authorities and the Government to gain a greater understanding of the level and the reasons for absence”.
There is no provision made for absences which are due to disability needs. While absences due to illness are mentioned, the focus is entirely on the authenticity of the illness.
“Code I: Illness (not medical or dental appointments)
Schools should advise parents to notify the school as soon as possible when a child is ill. If the authenticity of illness is in doubt, schools can request parents to provide medical evidence to support illness. Schools can record the absence as unauthorised if not satisfied of the seriousness of the illness but should advise parents of their intention. Schools are advised not to request medical certificates unnecessarily (particularly retrospective certificates), especially if the illness was not treated by a doctor at the time. Medical evidence can take the form of prescriptions, appointment cards, etc. rather than doctors’ notes.”
This guidance is clearly inadequate. However the solution to this is not to place the burden on schools.
What should the DfE produce?
Any scheme to award good attendance must consider applying some “reasonable adjustment” to the scheme which either discounts disability related absences entirely or offers some “concession”.
Plainly the DfE does not need to do very much to provide guidance. We suggest the following potential wording:
“Schools who decide to use attendance awards whereby whole classes benefit if the attendance of all pupils is 100% over a period should consider whether to apply a reasonable adjustment to the scheme for example to discount disability related absences from the class total.”
For example, at one primary school, the rules of the scheme are as follows:
“An attendance reward should be awarded to all pupils who have achieved two badges i.e. 100% attendance over the whole term. 100% attendance is defined by the school register showing all present or statistically present marks. The two exceptions for ‘authorised absence’ are pupils whose absence marks relate to a recognised impairment (as the Disability Discrimination Act requires us to treat those with a disability ‘more favourably’) or those pupils granted leave for religious observance.”
This is an excellent example of a scheme which does not put children with disabilities at a disadvantage. However, without guidance from the DfE, parents and children can have no confidence that their school will implement such a scheme.
The nature of the adjustments that could be made is one aspect only of the needs of the child with a disability that are being ignored by the DfE’s approach. The existence of awards schemes imposing a disadvantage on the group teaches a poor lesson in relation to tolerance towards children with disabilities. The government is remaining silent on the need for schools to teach this tolerance. Guidance could encourage schools to foster good relations by ensuring that disabled children are not seen as causing a problem for the class.
In schemes which operate by way of individual awards too, there is an important role for the government to play to ensure that the lessons about reasonable adjustments are learned by children at an early stage. No scheme should prevent a child with a disability from receiving an award due to disability related absence. If questions are raised by children about the fairness of making adjustments, it presents a valuable learning opportunity regarding attitudes to disability and to tolerance more generally. Schools should be encouraged by the DfE to take advantage of this.
What other tools are available to challenge the DfE?
Obviously the Minister could face challenges under the PSED. These would be based on a failure to issue guidance in the light of the increase in awards schemes. However, the Minister also has international obligations which can be used in challenges. The state has obligations under the UN Convention on Rights for Persons with Disabilities and particularly Articles 7 and 24. Article 7 says
“States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children.”
That obligation is spelled out further in Article 24 which creates obligations on the State regarding the way in which that right to education is to be achieved. The UNCRPD recognises the right of persons with disabilities to education. To achieve equal access to that right States Parties must ensure an inclusive education system directed to their full development and strengthening respect for human rights, dignity, fundamental freedoms and human diversity. That system is to be aimed at enabling persons with disabilities to participate effectively in a free society.
The detail is of importance in the context of trying to ascertain what “due regard” looks like in a situation affecting children with disabilities in schools.
Thus persons with disabilities are not to be excluded from the general education system on the basis of disability. They must be able to access an inclusive, quality and free primary education and
secondary education on an equal basis with others in the communities in which they live; the state must ensure that reasonable accommodation of the individual’s requirements is provided.
So under international law the government has a duty to ensure equal access to education and its benefits for children with disabilities.
The way in which the UNCRPD can inform the court’s approach to the PSED can be seen in the Court of Appeal judgment in Stuart Bracking & Ors v Secretary of State for Work and Pensions  EWCA Civ 1345 (06 November 2013)  Eq LR 60. There, the Court of Appeal considered the UNCRPD provisions in Article 19, which require states to take effective and appropriate measures to facilitate the right for the disabled to live in the community, including where appropriate the promotion of independent living.
Elias LJ considered that from the information available, the court could not properly make the inference that the Minister had properly appreciated and addressed the full scope and import of the matters which she is obliged to consider pursuant to the PSED. It was not enough to have a vague awareness of owing legal duties to the disabled nor for the Minister’s officials to alert the decision maker to the obligation to have regard to the matters identified in an impact assessment. There would need to be evidence that the decision maker had his or her attention drawn to the positive obligation to advance equality of opportunity.
Elias LJ went on to note that there was no evidence that regard had been had to the specific obligations under the UNCRPD. This had not been argued as, of itself, a breach of the PSED, but Elias LJ stated that these international obligations which the UK has undertaken with respect to the disabled ought to inform the scope of the PSED with respect to the disabled. There was no evidence that any of these considerations were in the mind of the Minister.
So in the education context, the details of the international obligations can help the court to find a sense of what “due” regard will look like in a particular case. The education articles of the UNCRPD can provide powerful material for a challenge to the DfE’s decision not to issue guidance or advice to schools.
Plainly the world of work for which children are now being educated is inclusive of persons with disabilities. Disabled people are entitled to adjustments to be made to the workplace to enable them to participate on an equal basis with those who do not have disabilities. Schools which teach pupils that poor attendance by one member of the class causes them personally a difficulty are less likely to produce children who are tolerant of disability related absence or adjustments. If taught carefully the value and importance of such adjustments, pupils are likely to become adults who are tolerant of the needs of disabled persons in the work place, transport or any other situation in which the needs of the individual disabled person may be perceived as causing a disadvantage to the needs of the many. Without action by the DfE, this objective is seriously undermined.