Ensuring schools make entrance exams accessible for disabled children

Case name: X v Proprietor of Reading School

A pupil with a vision impairment was unable to sit an entry exam (11+) to a grammar school when the adjustments he needed weren’t made. The successful outcome from this case clarified who is responsible for making reasonable adjustments and improved the accessibility of entrance exams.

Legal issue

Who has responsibility for making reasonable adjustments for entrance exams, and is it possible to appeal to the First-tier Tribunal (SEND) against a decision not to make those adjustments?

Background

This case was referred to us by the Royal National Institute of Blind People (RNIB).

For a number of years, RNIB has been concerned about the accessibility of 11+ entrance exams for children with vision impairments. Every year RNIB receive enquiries from parents and professionals regarding the process of testing for grammar schools and how to ensure the tests are accessible. 

The child in this case, who cannot be named for legal reasons, has a vision impairment and an Education, Health and Care Plan (EHCP) specifying the adjustments he needs in school. Despite this, he was unable to sit an entry exam to a Berkshire grammar school when the adjustments weren’t made for modifying the exam paper.  

The child’s parents applied for him to take the 11+ entry exam for Reading School but accepted an offer for him to sit the exam at another school (the “test-centre school”), which is part of the Slough Consortium of Grammar Schools, and is closer to their home.

The day before the exam, the test-centre school said they could not make the adjustments that had been requested, including larger fonts on the exam paper, saying they would cost in excess of £2,000.

Due to the lack of a proper written policy between itself and the consortium, Reading School were unaware of the request, and so did not accept responsibility for making the adjustments.

Why we were involved

We wanted to clarify whose duty it is to make reasonable adjustments in the context of the entrance exams and grammar schools.

We were also challenging the school on its failure to have in place a proper written policy with the consortium as to how adjustments to take the examination will be made for children who are disabled. In the future we want to ensure that no disabled child is disadvantaged when taking an entrance exam, and that they have the adjustments that they need.  

This case tested whether it is possible to bring a claim to the First-tier Tribunal (Special Educational Needs and Disability) against a decision in respect of an admission arrangement such as an entrance exam, where it concerns a claim for disability discrimination by a child who has an EHCP and cannot appeal to an Admissions Appeal Panel because there was no admission decision.

We also saw this as an opportunity to clarify and strengthen the law under the Equality Act 2010, so that legal professionals can properly advise their own disabled clients about who is responsible for making reasonable adjustments and accessible entry exams.

What we did

We provided funding for a challenge to be brought to the First-tier Tribunal (Special Educational Needs and Disability).  

The legal case was led by Chris Barnett, solicitor at Sinclairs Law, and counsel, Nick Armstrong of Matrix Chambers, who represented the child at the First-tier Tribunal.

We also worked with RNIB, who part funded this case.

What happened

At the hearing, Reading School accepted that the adjustments requested were reasonable, but argued that they had no knowledge of the request as it was made via the Consortium, despite allowing for the alternative test arrangement to take place.

The First-tier Tribunal concluded that Reading School were responsible for making sure the adjustments were in place. The duty is set out in section 85(1) of the Equality Act 2010, which says that: “The responsible body of a school to which this section applies must not discriminate against a person in the arrangements it makes for deciding who is offered admission as a pupil.”

The Tribunal also said that, if applying through a consortium, there should be an agreed written policy in place to set out how adjustments should be made for disabled children to take the exam.

Schools using consortia to administer exams to select pupils for admission should therefore take steps to ensure that their obligation to make reasonable adjustments is met. It is not possible for schools to abdicate that responsibility even if it has no knowledge of the request.

Schools should be proactive in anticipating the range of reasonable adjustments which may be needed, as the duty to make them is an anticipatory one; i.e. it applies to all prospective disabled pupils.

Who will benefit and how

The success of this legal challenge will benefit children who are disabled, and who wish to have an equal opportunity to sit the entrance examinations for admission to selective schools.

Following the ruling, RNIB wrote to the Grammar School Heads Association (GSHA) and 11+ exam providers (CEM and GL Assessments), to ensure entry exams are accessible, and we have sent letters to all grammar schools, selective schools and consortiums to remind them of their duty under the Equality Act 2010 not to discriminate against disabled children.

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