In Early Years Education 

Earlier this year, the law was altered to give free nursery education places to all 3 and 4 year olds, if the parents want them to attend. It is probably safe to assume, then, that the numbers of children attending nurseries will rise significantly in the near future.

At the same time, providers of early years education are now subject to new rules designed to protect children with disabilities from unlawful discrimination. As of 1 September 2002, nursery schools and other early years education have been covered by the terms of the Disability Discrimination Act 1995 for the first time.

Children are protected from discrimination if they have (or used to have) a "disability" – as defined in the 1995 Act. The legal test for "disability" focuses on impairments and the effect they have on a child’s ability to carry out normal day-to-day activities. The impairment must also be long-term (i.e. 12 months or more). It is therefore a medical model of disability. The definition is quite complex and parents may require to seek legal or medical advice, however it includes children whose disabilities cause them substantial problems with:

Disabled children are protected from discrimination in early years education. Discrimination may come in two different forms. First, disabled children must not be treated less favourably as a result of their disability.

For example, this means:

In some circumstances, it may be possible to justify otherwise unlawful treatment if there is a substantial reason for it which is material to the circumstances of the case. For example, it might not be unlawful to refuse a disabled child a place at an Education Authority nursery school if that nursery school did not have the proper facilities for that kind of disability; but the Education Authority offered an alternative place at a nursery which does have the proper facilities.

Disabled children must not be denied the right to have reasonable adjustments made for them. This is the second form of discrimination.

The types of reasonable adjustments which may need to be made will vary depending on the type of provision.

If a disabled child attends an independent early years provider which is not part of a school, then that provider must:

 As of 1 October 2004, these providers may also have to remove or alter physical barriers to allow disabled children improved access to the early years education provided.

"Auxiliary aids and services" means things like providing a sign language interpreter for a child with a hearing impairment. It might also include the provision of specialist equipment or additional assistance for disabled children.

If the child attends Education Authority provision or a nursery class which is part of a school, then the provider must:

The duty to make reasonable adjustments is a general, anticipatory duty and should be carried out by providers of early years education prior to a need arising, rather than waiting for problems to occur first.

In some circumstances, it may be possible to justify a failure to make a reasonable adjustment if there is a substantial reason for the failure which is material to the circumstances of the case.

It may not always be reasonable for a provider of early years education to have to make a particular adjustment. It will depend on various factors such as the cost of making an adjustment; the financial resources available to the provider; the practicalities of making an adjustment etc.

Depending on the type of provision and the type of discrimination, a provider of early years education may unlawfully discriminate against a disabled child, even if they don’t know that that child is disabled. Parents of disabled children are encouraged to let the providers know about their child’s impairments so that they can work together to avoid unlawful discrimination taking place.

If a disabled child is the victim of disability discrimination then they have the right to bring court action against the provider in the local Sheriff Court. This is usually done by the parents on the child’s behalf. The court can order the provider to stop doing something which is discriminatory, or order them to make a reasonable adjustment for the benefit of a disabled child. In the case of early years education which is neither part of a school, nor provided by the Education Authority, the court an also award compensation for injury to the disabled child’s feelings. An independent conciliation service will also be available to help to resolve disputes about discrimination in early years education.

This article is intended to serve as a brief guide to the Disability Discrimination Act 1995 as it applies to early years education. It is not a complete statement of the law and is not a replacement for individual legal advice.



Further information on the Disability Discrimination Act 1995 can be obtained from the Disability Rights Commission Helpline: 08457 622 633 (Mincom: 08457 622644; Fax: 08457 778 878; E-Mail: enquiry@drc-gb.org)

The author is Iain Nisbet, Associate Solicitor at Govan Law Centre and Co-ordinator of its Education Law Unit. The Education Law Unit is funded by the Scottish Executive and provides information, advice and training on the law relating to special educational needs throughout Scotland. Telephone/Minicom: 0141 445 1955; Fax: 0141 445 3934; E-Mail: advice@edlaw.org.uk