Written evidence submitted by the Equality and Human Rights Commission

Introduction

1. The Equality and Human Rights Commission (the Commission) is a statutory body established under the Equality Act 2006. It operates independently to encourage equality and diversity, eliminate unlawful discrimination, and protect and promote human rights. The Commission has powers to advise the Government on the equality and human rights implications of laws and proposed laws, and to publish information or provide advice, including to Parliament, on any matter related to equality, diversity and human rights.
2. The Commission welcomes the Committee’s inquiry into persistent absence and support for disadvantaged pupils, and its recognition of the particular issues faced by certain groups of children, such as those with special educational needs. We recently published our submission to the UN on Children’s Rights in Great Britain, raising the issue of persistent absence and noting its continuing rise, particularly in special schools between 2018/19 and 2020/21. As the Committee is aware, evidence also shows particular issues for some ethnic groups, with Traveller of Irish Heritage pupils and Gypsy / Roma pupils having the highest overall absence rates and highest rates of persistent absences. We are concerned that persistent absence not only impacts upon academic achievement, but also presents safeguarding risks.
3. There can be complex reasons for non-attendance and it is essential that all potential barriers  are considered, and that appropriate support is available. Disability Rights UK indicate that, to be meaningful, attendance support must provide children with ‘the real ability to access education and reach their full potential – even if that’s outside the traditional structures of school and attendance.’ This short submission sets out the relevant equality and human rights obligations that can help government and schools to support children and ensure that policies meet their diverse needs. We recommend that the Committee considers and applies these legal requirements when conducting its inquiry.

Reasonable adjustments

4. Under s20 of the Equality Act 2010 (“the Act”), there is an anticipatory duty to provide reasonable adjustments where disabled people would be placed at a substantial disadvantage were they not provided. This includes providing information in accessible formats.
5. The Commission has produced Guidance for Schools in England on Reasonable Adjustments for Disabled Pupils. This explains that schools have a duty to plan for better access for disabled pupils generally, including in relation to the physical environment of the school. Schools are also required to take positive steps to ensure that disabled pupils can fully participate in the education provided and that they can enjoy the other benefits, facilities and services provided.
6. This has obvious implications in relation to supporting attendance. Our guidance includes, for example, a case study of a disabled child with chronic fatigue syndrome. Reasonable adjustments such as adjusting the location of classes and a ‘buddy’ to carry books helped to improve attendance and to reduce disadvantage in this example. 
7. We welcome references to reasonable adjustments in the Department for Education’s Working together to improve school attendance guidance. However, it must be clear that an anticipatory duty to provide reasonable adjustments is a legal requirement on schools under s20 of the Act. We recommend that this is made clear in future iterations of this guidance.

Public Sector Equality Duty (PSED)

8. The Act also places a positive duty on public bodies (including schools) to proactively give appropriate consideration (due regard) to the need to:

• eliminate unlawful discrimination;
• advance equality of opportunity between people who share protected characteristics and those who do not; and
• foster good relations between people who share protected characteristics and those who do not.

9. The Commission has published Guidance for Schools on the PSED. The duty can remind schools that equality is not necessarily about treating all pupils in an identical way. It is about developing different strategies to meet the various needs of pupils. These strategies should also be monitored to find out how they are working. A focus on advancing equality of opportunity under the PSED can also encourage schools to consider how to increase the participation of their pupils with different protected characteristics in areas of school life where it is disproportionately low.
10. We welcome the reference to the PSED in the Government’s attendance guidance, including the importance of ‘regular data analysis to both identify and provide immediate additional support to pupils or pupil cohorts that need it, and to look at historic and emerging patterns across the school and develop strategies to address them’.
11. The Commission further supports, in principle, the creation of a register of children not in school, including the collection of voluntarily provided data on the protected characteristics of children, as well as the reasons for home schooling. We believe this would help the UK Government and local authorities to understand disproportionality for any protected characteristics groups and meet their obligations under the PSED. We recognise the concerns that have been raised by some stakeholders regarding safety and privacy These concerns should be properly understood and mitigated if measures are brought forward. We are aware that the Schools Bill is no longer being taken forward by the Government but welcome the commitment from the Secretary of State that the introduction of a register remains a priority.

Right to education

12. Alongside equality obligations, we would like to draw the Committee’s attention to a number of relevant human rights protections when considering policies to address persistent absence. 

-          Article 2 to Protocol 1 of the European Convention of Human Rights provides that everyone has the right not to be denied access to the educational system. This protection must be read together with article 14 (non-discrimination).

-          Article 28 of the Convention on the Rights of the Child enshrines the right to education, which includes a duty on States to take measures to encourage regular attendance at schools and to reduce drop-out rates.

-          Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination includes the right to education without distinction as to race, colour, or national or ethnic origin.

13. We recommend that the Committee builds consideration of these protections into its inquiry.

February 2023