REVIEW OF THE EHRC CODE OF PRACTICE (Equality & Human Rights Commission -Services & Public Functions)

by SEN Parent Support Group

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SEND PARENT‑FRIENDLY REVIEW

1. What this Code is

• It is a statutory Code of Practice under the Equality Act 2010.
• It does not create new law, but courts must consider it when deciding discrimination cases.
• It explains how organisations should avoid discrimination, harassment, victimisation, and how they must meet the duty to make reasonable adjustments.

Why this matters for SEND families:
It is one of the strongest tools parents have when challenging discrimination by schools, LAs, health bodies, transport, leisure providers, clubs, and any organisation delivering a “service” or “public function”.

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2. Who and what it covers

The Code applies to:

• All service providers: Public, private, voluntary paid or unpaid.

• All bodies exercising public functions

This includes:

• Local Authorities
• NHS bodies
• Schools when performing public functions (e.g., admissions, exclusions, safeguarding, behaviour policies)
• Transport authorities
• Social care
• Police
• Any organisation acting under statutory powers

• Associations

Clubs, groups, political parties, membership bodies (25+ members).

SEND relevance:
Almost every organisation SEND families interact with is covered.

Example – Holiday Clubs: Children with SEND are fully protected under the Equality Act when accessing holiday clubs, and the EHRC Code makes this crystal clear. Holiday clubs count as “services to the public”, whether they are run by schools, councils, charities or private providers, which means they must make reasonable adjustments, plan ahead for disabled children, and cannot refuse a place because a child needs support.

Charging extra for disability‑related needs, insisting on 1:1 funding from parents, excluding children for behaviour linked to disability, or applying blanket rules that don’t take SEND into account can all amount to unlawful discrimination. The Code reinforces that budget, staffing, or “we’re not trained” are not valid excuses. Holiday clubs must adapt their policies, routines, communication, and environment so disabled children can participate meaningfully and parents cannot be blamed, pressured, or made to feel their child is a burden. In practice, this means SEND children have the same right to play, socialise and access childcare as every other child, and providers have a legal duty to remove barriers rather than place them.

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3. Key protections for disabled children & parents

The Code reinforces the Equality Act’s protections:

A. Disability discrimination

The Code explains four forms of disability discrimination:

1. Direct discrimination

Treating a disabled child/parent worse because of disability.

2. Indirect discrimination

Policies that apply to everyone but disadvantage disabled people (e.g., behaviour policies that punish disability‑related behaviours).

3. Discrimination arising from disability (Section 15)

Unfavourable treatment because of something arising from disability – e.g., exclusions for behaviour linked to unmet need.

4. Failure to make reasonable adjustments

This is the big one for SEND families.
The Code gives detailed guidance on:

• Changing policies
• Providing auxiliary aids
• Adjusting physical features
• Anticipatory duty (services must plan ahead, not wait for a problem)

Impact:
Parents can use this Code to show that a school, LA, or service provider should have foreseen barriers and acted before harm occurred. Our group resource here addresses this in addition to addressing punitive sanctions here

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4. What counts as a “service” or “public function” for SEND purposes

The Code confirms that SEND families are protected when accessing:

• School admissions
• School transport
• After‑school clubs
• Leisure centres
• Libraries
• Health appointments
• Social care
• EHCP processes
• Complaints systems
• Safeguarding procedures
• LA decision‑making panels
• Any statutory process (e.g., EHCNA, annual reviews)

Important:
Even if the organisation is private, if it is carrying out a public function (e.g., outsourced transport, commissioned therapy), it must comply.

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5. Reasonable Adjustments – clarified in the Code

The Code gives practical examples of what reasonable adjustments look like:

• Adjusting behaviour policies
• Providing alternative formats
• Allowing flexible processes
• Changing communication methods
• Providing extra time
• Offering quiet waiting areas
• Allowing parents to accompany children
• Providing accessible toilets
• Adapting physical spaces
• Providing specialist equipment or aids

SEND impact:
Parents can point to this Code when schools or LAs claim:

• “We don’t do that.”
• “It’s not our policy.”
• “We treat everyone the same.”
• “We don’t have the budget.”

The Code makes clear:
Budget, staffing, or internal policy cannot justify discrimination.

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6. Harassment & Victimisation – powerful for SEND parents

The Code explains:

Harassment

Unwanted conduct related to disability that violates dignity or creates a hostile environment.
This includes:

• Blaming parents
• Dismissing needs
• Mocking behaviours
• Repeatedly questioning diagnoses
• Using intimidating language
• “Weaponising” safeguarding

Victimisation

Treating a parent/child worse because they:

• Requested an EHCNA
• Complained
• Challenged a decision
• Used their legal rights
• Supported another parent
• Raised safeguarding concerns

SEND impact:
Parents can use this Code to challenge retaliatory behaviour by schools or LAs.

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7. Positive Action – often misunderstood

The Code confirms that organisations can lawfully treat disabled people more favourably to remove barriers.

Examples:

• Priority appointments
• Adjusted processes
• Specialist support
• Early access
• Tailored pathways

This is not discrimination against others – it is lawful and encouraged.

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8. Enforcement – what parents can do

The Code explains how discrimination can be challenged:

• Complaints
• Judicial review
• County Court claims
• EHRC involvement
• Damages
• Injunctions
• Settlements
• Burden of proof rules

SEND impact:
Parents can cite the Code in:

• Formal complaints
• Pre‑action letters
• Tribunal evidence (for discrimination claims)
• Judicial review challenges
• School/LA correspondence

Courts must consider the Code when deciding if discrimination occurred.

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9. How this Code interacts with SEND law

The Code sits alongside:

• Children and Families Act 2014
• SEND Regulations 2014
• SEND Code of Practice 2015
• Human Rights Act 1998
• Public Sector Equality Duty (PSED)
• Education Act 1996 (s.19)
• Equality Act 2010 (core statute)

Crucially:
The Equality Act applies even when SEND law is being followed.
A school or LA can comply with SEND law but still discriminate.

Example:
A child may have an EHCP, but if the school refuses reasonable adjustments while waiting for provision to start, that is still discrimination.

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10. What this means for SEND families right now

A. Stronger grounds to challenge discriminatory behaviour policies

Especially around:

• “Zero tolerance”
• “No excuses”
• “Persistent disruptive behaviour”
• “Defiance”
• “Non‑compliance”

B. Stronger grounds to challenge exclusions

Most exclusions of SEND children involve Section 15 discrimination.

C. Stronger grounds to challenge LA delays

Delays can amount to discrimination if they disproportionately harm disabled children.

D. Stronger grounds to challenge inaccessible processes

EHCNA, annual reviews, complaints, safeguarding, transport – all must be accessible.

E. Stronger grounds to challenge parent‑blaming

Harassment and victimisation protections apply to parents too.

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SUMMARY

The EHRC Statutory Code of Practice sits quietly in the background of the SEND world, but its impact is anything but quiet. It reinforces what many parents already know instinctively: disabled children have rights that cannot be diluted by policy, preference, staffing levels or the wider pressures of the system.

Whether it’s a school, a holiday club, a transport provider or a local authority, every organisation delivering a service must remove barriers, anticipate needs and treat disabled children fairly.

As SEND reform moves forward and the landscape shifts again, this Code remains one of the strongest legal protections families have. It ensures that individual needs cannot be flattened into standardisation, that behaviour cannot be punished when it is communication, and that parents cannot be blamed or sidelined for advocating.

The Equality Act continues to stand firm, and this Code makes sure its protections reach into every corner of a child’s life.

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If you as a SEND Parent want to learn more about the SEND Law process to assist in your parental advocation for your CYP’s rights then please join our Closed Facebook Group here or explore our resource hub here. Additionally our SEND Bible can offer immediate resource return on your current situation, pointing you to the pertinent resources you may need, without overwhelming you! Not only do we have our website and The SEND Bible™ we offer 1:1 Mentor Support to SEND Parents. Book Here

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