Across the UK, different nations have different laws and legislation which has been made to look after children with medical conditions in school.
One of the most common, and the one we speak most about, is the Equality Act 2010, that affects schools in England, Scotland and Wales. For more specific laws and legislation that has been made by your nation to help children in school, click your nation below.
Specific legal information by nation
The Equality Act 2010 (England, Scotland and Wales)
The NHS, local authorities and all schools in England, Scotland and Wales all have responsibilities towards children with diabetes, who are legally defined as being disabled. Fee-paying independent schools are also legally obliged to meet the requirements outlined in the Equality Act 2010.
The relevant part of this act is that governing bodies or proprietors must make reasonable adjustments to ensure that children and young people with disability aren't put at a substantial disadvantage compared to other students.
Importantly, making reasonable adjustments is anticipatory, which means they must be put in place in advance to prevent the student from being at a disadvantage.
This is particularly important for schools because they have enough staff trained so that a child with diabetes can take part in all parts of school life. If all the trained staff are away or leave, schools must have contingency plans to train up replacements quickly.
The Equality Act also says children with a disability must not be discriminated against, harassed or victimised.
Find out more on the Equality and Human Rights Commission website.
The Disability Discrimination Act 1995 (Northern Ireland)
Northern Ireland isn't included in the Equality Act 2010, but they do have their own equivalent legislation called the Disability Discrimination Act or the DDA.
You can find out more about the DDA on the Equality Commission for Northern Ireland website.
Children and Families Act 2014
The Children and Families Act 2014 includes a duty on schools to support children with medical conditions. This is inclusive of children with diabetes. Schools must make arrangements for supporting pupils at schools with medical conditions and in meeting that duty they must have regard to the statutory guidance issued by the Secretary of State.
Schools that must meet the duty in the Children and Families Act are:
- a maintained school
- an Academy school
- an alternative provision Academy
- a pupil referral unit.
The legal duty in the Children and Families Act is on “the appropriate authority”. “The appropriate authority” means:
- The governing body of a maintained school
- The proprietor of an academy
- The managing committee of a pupil referral unit.
If you are a school in England, read what a school will need to do to for a child with diabetes.
The Education Act 2002
Sections 21 and 175 of the Education Act 2002 detail how governing bodies of maintained schools must support the wellbeing of students and take responsibility of safeguarding of children at the school.
Section 3 of the Children Act 1989
The Children Act places a duty on any person who looks after a child to do everything reasonable in the circumstances for safeguarding. In relation to a child with diabetes, this will mean knowing what to do in case of an emergency.
Legal duties on local authorities
Local authorities have legal requirements to help make sure schools can support a child with diabetes successfully. The requirements of local authorities refer to all children in the local authority, and they do not depend on the kind of school the child attends.
Section 10 of the Children Act 2004
Section 10 of the Children's Act is really important if schools are struggling to get the support and training they need to allow them to look after a child with diabetes properly.
Section 10 means the local authority must make arrangements to encourage collaboration between the authority and relevant partners. Relevant partners include the governing body of a maintained school, the proprietor of an academy, clinical commissioning groups and the NHS Commissioning Board. They must make arrangements to improve the wellbeing of children, including their physical and mental health, protection from harm and neglect, and education.
If a school cannot get the support it needs to look after a child with diabetes then they must approach their local authority for support.
Section of 17 of the Children’s Act
Section 17 gives local authorities a general responsibility to safeguard and promote the welfare of children in need in their area. If a school is looking after a child with diabetes inadequately which is putting the child in danger, the local authority must step in.
Legal duties on the NHS
Section 3 of the NHS Act 2006
This outlines that the local CCG is responsible for providing health services. The CCG will decide what's necessary to meet the reasonable needs of each person that it's responsible for.
This section also requires CCGs to arrange services it thinks are appropriate to improve students physical and mental health for the people it's responsible for.
In regards to children with diabetes, this means that a CCG should make sure support and healthcare in place to improve their health or at least keep them healthy. Poor management of diabetes at school will affect the health of a child. If a school is unable to get the support it needs to help manage a child's diabetes successfully, both the local authority and the local CCG have a responsibility to look after the child's health and welfare.
Supporting pupils with Medication Needs 2008
This joint guidance, published by the Department of Education (DE) and the Department of Health, Social Services and Public Safety (DHSSPS) in 2008, sets out the key roles and responsibilities about the medication needs of school pupils in Northern Ireland.
You can find out more about ‘Supporting pupils with Medication Needs 2008’ on the Department of Education Northern Ireland website.
The guidance requires schools to have a policy in place that ensures that children with medication needs, such as insulin, will receive appropriate care and support at school.
The Departmental guidance states that,
“As far as possible, policies should provide guidance that enable regular attendance for children with medication needs. Formal systems and procedures for carrying out the policy are drawn up in partnership with parents, education and health staff.”
All schools can contact healthcare specialists for advice on medication and care. Individual Healthcare Plans should be in place agreed by the school, the parents and Diabetes Nurse Specialists.
Departmental guidance states that ‘reasonable steps’ should be taken by schools to encourage pupils with medication needs to participate in school trips.
If a member of staff gives medication to a pupil and faces expenses, liability, loss claim or proceedings as a result, the employer must protect the staff member provided that:
- the member of staff is a direct employee;
- the medication is administered in the course of, or ancillary to, their employment;
- the member of staff follows the procedures set out in the Department of Education guidance, the school’s policy and the procedures set out in the pupil’s Medication Plan (or written permissions from parents and directions received through training in the appropriate procedures).
Since 2008, the Department of Education has made funding available to the Education and Library Boards to provide training to all school Principals on how to meet the needs of all pupils with medication needs, including those with diabetes.
Special Education Needs
The vast majority of children with diabetes do not require a Statement of Special Education Needs. If a childs needs cannot be met within the support normally available to the school, a request for a statutory assessment can be made by a school, parent or other agency. This is done by writing to the Special Education Needs section of the local Education and Library Board.
The Special Educational Needs and Disability (Northern Ireland) Order 2005 does not require or prohibit the administration of medicines to pupils. Clauses of this legislation does state that pupils with a disability (diabetes is recognised as such) should not be discriminated against in the education or associated services provided.
Dispute Avoidance and Resolution Service (DARS)
If a parent is unhappy about the treatment of their child in school, they can contact the Dispute Avoidance and Resolution Service (DARS) which was established in 2005 to resolve disagreements or disputes between Boards, Boards of Governors, Responsible Bodies and parents.
It is designed as an independent, confidential, voluntary and informal service. It is independent of the Special Education section, and there is a DARS contact in each Education and Library Board.
What Diabetes Care to Expect in Schools
The Education Minister asked the five Education Boards, the Paediatric Diabetes Specialist Nurse Regional Group, and Diabetes UK Northern Ireland to commence work on up-to-date guidance for parents. The document ‘What Diabetes Care to Expect in Schools’ which you can download on Northern Irelands Education Authority website.
There are several pieces of legislation relating to the rights of children with diabetes at school:
- Children and Young Person (Scotland) Bill (passed on 19 February 2014 but not yet in force);
- NHS (Scotland) Act 1978; The Functions of Health Boards (Scotland) Order 1991;
- the Education (Disability Strategies and Pupils’ Educational Records (Scotland) Act (2003);
- Standards in Scotland’s Schools etc Act 2000;
- Education (Scotland) Act 1980 and the Education (Additional Support for Learning) (Scotland) Act 2004.
The last of these are the most current and relevant for parents of children with diabetes at school.
Education (Additional Support for Learning) (Scotland) Act 2004
“The Education (Additional support for learning) (Scotland) Act (2004) places duties on education authorities to identify, meet and keep under review the additional support needs of all pupils for whom they are responsible, including pupils with diabetes. The Education (Disability Strategies and Pupils’ Educational Records (Scotland) Act (2003) also places duties on bodies responsible for schools to prepare an accessibility strategy which sets out their plans to ensure access to the curriculum, physical environment of schools and school information. There are also examples of good practice – for example, in 2008 Fife Council Education Service produced a policy for the management of diabetes in schools, which may be used country-wide.” – from 'Supporting children and young people with diabetes', RCN guidance for nurses in schools and early years settings, Royal College of Nursing 2013.
The concept of 'additional support needs' applies to any child or young person who, for whatever reason, needs additional support for learning. These needs can arise from any factor which causes a barrier to learning including social, emotional, cognitive, linguistic, disability, or family and care circumstances. Issues arising from managing diabetes while at school can count as an additional support need.
The impact will vary from child to child but it is how these factors impact on the individual child's learning that is important, and this will determine the level of support is needed.
Education authorities must:
- make enough and efficient provision for each child or young person with additional support needs, for whose education they are responsible
- keep under consideration the needs and the level of support for each child or young person with additional support needs
- take account of the additional support needs of children when providing school education generally.
Parents have the right to:
- request the education authority to find out if their child has additional support needs
- request the education authority to find out if their child needs a Co-ordinated Support Plan or to review an existing plan
- request a specific type of assessment or examination.
A recent case study
Callum Wyper, aged 7, a student at Dykehead Primary School in Shotts, needs support during the school day to manage his diabetes, which includes the administration of insulin. But because of a lack of preparation by the education authority, Callum ended up missing nearly two months of school between December 2012 and January 2013.
North Lanarkshire Council had relied on volunteers from existing school staff to support pupils with diabetes with their insulin regimes. But when this support was gone and the education authority failed to provide alternative provision, Callum's mother Julie and step-father James felt they had no option but to withdraw him from school to ensure his diabetes was safely managed. The Additional Support Needs Tribunal decided that it would have been reasonable to hire support staff whose duties included responsibility for the administration of insulin. The Council were found to have unlawfully discriminated against Callum in relation to his condition.
This case is not a 'reported decision' so can't be relied on. But it does provide a basis for arguing for support in other schools.
The current guidance frameworks for the management of Type 1 diabetes in school is different in Wales and England.
In England, the Children and Families Act 2014 came into force on 1 September 2014. Section 100 contains a statutory responsibility to support students with medical conditions. This means that in practice schools must make additional arrangements for supporting students at schools with medical conditions. This legislation does not apply to schools in Wales.
There is a concern that the rights of children and young people with medical needs in Wales during the school day are not protected in law to the same level as children in England, putting them at risk of an academic and health disadvantage.
Welsh Government originally published a guidance document, 'Access to Education and Support for Children & Young People with Medical Needs' in 2010.
The Welsh Government have updated their guidance which can be found on their website for supporting learners with healthcare needs.
While we welcome the updating of the guidance document, it is not part of a legislative framework.
Our team in Wales is working with over 15 other organisations, the NHS and parents to influence legislative change in Wales.