mobility;
	manual dexterity
	physical co-ordination;
	incontinence;
	lifting, carrying or moving everyday objects;
	speaking;
	hearing;
	eyesight;
	remembering;
	concentration;
	learning;
	understanding;
	perception of the risk of physical danger.

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:

	a child should not normally be refused a place at a nursery (or other early years provider) due to his or her disability;
	a child should not normally be excluded from activities other children do because of his or her disability;
	a child should not normally receive a lower standard of education just because he or she is disabled.

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:

	change any practices, policies or procedures which make it impossible or unreasonably difficult for disabled children to access the early years education provided;
	provide an auxiliary aid or service if it would make it easier for a disabled child to participate in the education provided;
	provide a reasonable alternative if physical barriers mean a disabled child cannot participate in the education provided.

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:

take all reasonable steps to avoid substantial disadvantage to disabled children;

but,

	they do not have to provide auxiliary aids or services (which are assumed to be covered by the Record of Needs provisions);
	they do not have to make any alterations to physical features (which are assumed to be covered under the new Accessibility Strategies provisions).

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.