Inclusion Now 58

Legal Question

“My daughter Joanna is a Deaf, British Sign Language (BSL) user with cancer. She is not attending school because she is shielding, in line with government
guidance. Her school have decided to use BBC school programmes as part of their remote education offering for all pupils who are shielding or have tested Covid-19 positive. Like her non-Disabled peers, Joanna wanted the opportunity to watch the programmes again at her own leisure. There has been an argument between the school and the BBC on who is responsible for the BSL interpretation – with each claiming it’s not them. Who is legally responsible for BSL on virtual lessons, homework and education platforms?”

Schools are under a legal duty to provide online education for children of compulsory school age, if they are unable to attend school due to Covid-19. This new legal duty is temporary and there is little detail on what schools need to do to comply with the duty. However, the guidance published by the Department for Education states that remote education should be suitably tailored for Disabled children and those labelled with Special Educational Needs (SEN), so any teaching will need to be adapted. If your daughter cannot access online education without the BSL interpretation, then adaptations should be made to ensure that her education is tailored in line with her needs and, if necessary, BSL interpretation be provided.

Schools are also required to make adaptations in any event as they are also required to comply with the Equality Act 2010, which includes a duty to make reasonable adjustments for Disabled pupils. If your daughter’s school do not make reasonable adjustments to her teaching then you could have grounds for a claim for disability discrimination, which can be pursued in the First-tier Tribunal (SEND). Exactly what reasonable adjustments should be made will depend on your daughter’s specific needs and will be different for different children but it is
important that the school should work together with you to establish what adjustments should be made any issues with this. A reasonable adjustment may include the provision of BSL interpretation to ensure your daughter can access her learning materials.

Local Authorities (LAs) are under a legal duty to make arrangements for the provision of suitable education for those children of compulsory school age who, by reason of illness or otherwise, may not receive suitable education unless such arrangements are made for them. If your daughter cannot access her learning materials without the BSL interpretation, then the Local Authority are under a responsibility
to ensure that arrangements are made so that she will receive a suitable education. This legal duty is found under Section 19 of the Education Act 1996 and the Local Authority’s refusal to provide your daughter with a suitable education may be challenged by way of Judicial Review.

In addition, the Local Authority may also be under a legal duty to provide support if your daughter is in receipt of an Education, Health and Care Plan (EHCP). This is because she is still entitled to the special educational provision detailed in the plan whilst she is not permitted to attend school. This means that if section F of your daughter’s EHCP contains the provision for a BSL interpreter and she is not receiving this provision whilst at home, then you may be able to challenge this through a Judicial Review. This is because, she should still be receiving the special educational provision that she is entitled to, despite being unable to attend school due to Covid-19.

Whilst the BBC also has duties under the Equality Act, it does not have any duties as an education provider so is not responsible for ensuring that BSL users are able access the education resources provided by their school.

If families find themselves in difficult situations like these then they can seek legal advice on their individual circumstances. It is important to remember that up to date advice on your specific circumstances will always be beneficial. Please also take into consideration that the legislation and guidance in relation to Covid-19 is frequently changing and this could impact on any advice given.

Lydia Neill is a Paralegal in the Public Law Team at Simpson Millar