Independent Panel for Special Education Advice (IPSEA)	Defending children’s right to special education provision
'Include and support' John Wright for IPSEA November 2000 Back to home page	A critical response to the Government’s proposed Special Educational Needs and Disability Rights in Education Bill, which will be reannounced on 6 December 2000. Introduction The greater discrimination The goal of inclusion The need for an enforcement agency	How will the extension of the DDA address … the most serious and prevalent form of discrimination in our school system? The answer is, it won't.
Introduction	When the Conservative Government introduced the 1995 Disability Discrimination Act, ministers justified the omission of measures to deal with discrimination in education by claiming that special education law (then the Education Act 1993, now included in the Education Act 1996) was so effective that disabled children in schools needed no further or additional protection or rights. It was a specious claim, and so there was no surprise when the Disability Rights Task Force subsequently advised the incoming Labour Government to correct the omission. by enlarging the scope of the DDA to cover discrimination in education ¹. The Government now propose doing this ².
	The legal definition of a disabled pupil or student will be one who has: ‘a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.’ The Act and accompanying regulations provide interpretation as follows: Physical impairment includes sensory impairment such as those affecting sight and hearing, and mental impairment includes a wide range of impairments relating to mental functioning, including learning disabilities. Substantial effect will be more than a minor or trivial effect, one which goes beyond normal differences between people. Normal day-to-day activities include the ability to concentrate, learn or understand. Finally, for an effect to be long-term it must have had, or be likely to have, an effect for at least 12 months. Although not all disabled children will have special educational needs, it is clear that the overwhelming majority of those 250,000 plus children who have Statements of Special Educational Needs will fall within the legal definition of ‘disabled’ and therefore in future come within the scope of the extended anti-discrimination legislation. Parents and carers of children with special educational needs will welcome this development, for children with special educational needs are sometimes discriminated against in schools on the grounds of their disability. For example, IPSEA has advised on cases where disabled children have been left out of school trips and class photos for ‘image’ reasons; where schools have been inflexible with regard to the siting of central resource bases such as libraries and science labs, despite the access difficulties posed to physically disabled pupils; where schools have been overtly unwelcoming to parents/carers of children with special needs in a manner which has seemed calculated to dissuade them from expressing a preference for that school; where children with special needs have been excluded from schools because of their needs. The extension of disability discrimination legislation to cover education should help curb such instances of derogatory prejudice and damaging denial of access to facilities and, as such, is to be welcomed.	¹ Disability Rights Task Force (1999) From Exclusion to Inclusion, London, DfEE ² DfEE (2000) SEN and Disability Rights in Education, Consultation Document, London, DfEE, March 2000
The greater discrimination Back to top	However, IPSEA’s casework suggests that problems of discrimination of this kind form a very small proportion of the situations in which children which special educational needs are discriminated against. Of the 6,000 plus parents/carers who call IPSEA every year, by far the majority would argue that their children are discriminated against by being denied the supportive special educational provision their needs call for: i.e. they are being denied the fundamental educational right to learn and make progress, at their own pace, to the best of their ability. How will the extension of the DDA help address the problem of denial of special educational provision, in IPSEA’s view the most serious and prevalent form of discrimination in our school system? The answer is, it won’t, because the Disability Rights Task Force recommended that failure to provide ‘aids and services’ for disabled children should not come within the scope of the new anti-discrimination measures (and the Government have accepted this). Ironically, the DRTF used the same argument as the Conservative Government in 1995: that special education law provides all the protection children need with regard to aids and services: ‘Many disabled children will receive the protection they receive through the SEN legislation. Children with statements, which would include many disabled children, have an enforceable right to the provision specified in the statement which may include auxiliary aids and services. Children with SEN but without a statement will not have an enforceable right but can expect to receive support from the school, and if necessary from external support services, to meet their needs. Their parents do have the legal right, however, to request a statutory assessment if they consider their child's needs are not being adequately met at the earlier stages of the SEN Code of Practice. If the parent is not satisfied with the outcome of such an assessment, or the request for an assessment is rejected, they can appeal to the SEN tribunal.’ (Chapter 4, paragraph 30, DRTF Report, 1999) Six years on, the claim is no less specious. Children with statements ‘have an enforceable right to the provision specified in the statement’ only when LEAs observe their legal duty to specify special educational provision in Part 3. A growing number flatly refuse to do this. Why? The Audit Commission’s 1992 conclusion is remains apt: ‘ … there is an incentive for LEAs not to specify what is to be provided because they thereby avoid a long-term financial commitment.’³ And IPSEA’s experience is that Labour's Secretary of State for Education is no more willing than any of his Conservative predecessors to use his powers to compel LEAs to obey the law. Of course, if parents themselves have the confidence and ability to take their case to the Special Educational Needs Tribunal they are likely to win an Order which compels their LEA to quantify in a statement the amount of help their child should receive. If the provision is not made, they can then go to a solicitor and legally threaten the LEA. But what of the rights of those children whose parents, for whatever reason, lack the ability, confidence or resources needed to mount a successful appeal, and to enforce their statements? The extension to the DDA ignores this problem, by deliberate design. The Government argue that the DDA is not an appropriate framework for legislation which would guarantee the delivery of aids and services to children with disabilities/SEN. There are other difficulties in the Government's proposals. Unlike people discriminated against on the grounds of disability in other areas of life, pupils and students discriminated against by schools and colleges will not be given the right to go to court and claim compensation. Instead, it is proposed that the Special Educational Needs Tribunal will hear their complaint. The Consultation document does not, however, explain what powers the SENT will have should they find a complaint of discrimination to be justified. Without the power to make Orders which will bind schools and LEAs in terms of their future behaviour and the power to order compensation for the suffering and disadvantage caused by their discrimination in the past, the work of the SENT in this new area will quickly fall into disrepute.	Children are discriminated against by being denied the supportive special educational provision their needs call for: i.e. they are being denied the fundamental educational right to learn and make progress, at their own pace, to the best of their ability. Children with statements ‘have an enforceable right to the provision specified in the statement’ only when LEAs observe their legal duty to specify special educational provision in Part 3. But there is an incentive for LEAs not to specify what is to be provided because they thereby avoid a long-term financial commitment. ³Getting in on the Act, Audit Commission/HMI, 1992.
The goal of inclusion Back to top	The Labour Government wishes to promote inclusion as well as preserve the right of parents to chose the type of school their child attends: mainstream or special. IPSEA strongly supports both goals, believing them to be in the best interests of children with disabilities and/or special educational needs. But to avoid conflict and to allow parents’ informed choice to add impetus to the growth of inclusion, parents need to be assured that their children will receive the provision and services necessary to support their learning in mainstream schools. Unless Statements are specific parents will be in the dark about the provision intended for their children. The current situation puts real pressure on parents to opt for what can seem the safest option for their child: a place in a special school. A visit and a look-around tells you roughly what you can expect, whereas with a mainstream school everything depends on the provision in the Statement being clearly specified. Because of their bad experiences with unspecified, inadequate and unsuitable provision, the Special Educational Consortium has described many parents who opt for special schools as 'refugees' from the mainstream.⁴	⁴The response of the Special Educational Consortium to the draft revised Code of Practice on the Identification and Assessment of Special Educational Needs.
The need for an enforcement agency Back to top	Governments have never been enthusiastic about enforcing the law on special education. But the DfEE under the present Labour Government has sunk to a new low. In the draft issued in July 2000 of a new Code of Practice on special educational needs, they have withdrawn previous statutory guidance to LEAs on the duty to specify special education provision in Statements (i.e. that normally this means that provision in a Statement must be quantified). Not only does this fly in the face of case law , it will actively encourage LEAs in future to produce unenforceable and legally dubious Statements. After almost two decades of advising parents and carers of children with special educational needs IPSEA has arrived at the view there is a need for an enforcement agency which would ensure that LEAs fulfil their legal duties towards children with special education needs. In the absence of DfEE interest, the law leaves enforcement to individual parent and carers, which discriminates against those parents who, for whatever reason (lack of confidence, ability, resources, time) are unable to act as legal watchdog to their own LEA. But why should a child have to rely on their parents to police the education system to ensure they get the provision their needs call for, when the law, since 1983, has guaranteed this as of right? And, why should parents have to rely on charities such as IPSEA, when children have legal rights to appropriate provision? How can New Labour, with its concern for the socially excluded, not perceive the double discrimination here against disabled children whose parents, for whatever reason, are less likely to be able to fight for their children's rights? The extension of the DDA to cover education could have helped but it will not, for by excluding denial of aids and services as a ground for discrimination it misses the biggest issue and ignores the greatest cause of discrimination. It also robs parents and carers of the potential support of the Disability Rights Commission as an enforcement agent, leaving them alone to fight for their children's rights to special educational education. Strangely, the Secretary of State David Blunkett has responded to recent research from the RNIB⁵ which found 'Too many [children with visual impairment] have to wait for specialist equipment [and] course materials they can read' by claiming that the Special Education and Disability Bill will give such children new rights and make it illegal for Councils to discriminate against them. It will not.	⁵ "Blind learners denied access", BBC News Online, 1 November 2000
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Independent Panel for Special Education Advice (IPSEA)

Defending children’s right to special education provision

'Include and support'

A critical response to the Government’s proposed Special Educational Needs and Disability Rights in Education Bill, which will be reannounced on 6 December 2000.

Introduction
The greater discrimination
The goal of inclusion
The need for an enforcement agency

How will the extension of the DDA address … the most serious and prevalent form of discrimination in our school system? The answer is, it won't.

Introduction

When the Conservative Government introduced the 1995 Disability Discrimination Act, ministers justified the omission of measures to deal with discrimination in education by claiming that special education law (then the Education Act 1993, now included in the Education Act 1996) was so effective that disabled children in schools needed no further or additional protection or rights.

It was a specious claim, and so there was no surprise when the Disability Rights Task Force subsequently advised the incoming Labour Government to correct the omission. by enlarging the scope of the DDA to cover discrimination in education ¹. The Government now propose doing this ².

The legal definition of a disabled pupil or student will be one who has:

‘a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.’

The Act and accompanying regulations provide interpretation as follows:

Physical impairment includes sensory impairment such as those affecting sight and hearing, and mental impairment includes a wide range of impairments relating to mental functioning, including learning disabilities.
Substantial effect will be more than a minor or trivial effect, one which goes beyond normal differences between people.
Normal day-to-day activities include the ability to concentrate, learn or understand.
Finally, for an effect to be long-term it must have had, or be likely to have, an effect for at least 12 months.

Although not all disabled children will have special educational needs, it is clear that the overwhelming majority of those 250,000 plus children who have Statements of Special Educational Needs will fall within the legal definition of ‘disabled’ and therefore in future come within the scope of the extended anti-discrimination legislation.

Parents and carers of children with special educational needs will welcome this development, for children with special educational needs are sometimes discriminated against in schools on the grounds of their disability. For example, IPSEA has advised on cases where disabled children have been left out of school trips and class photos for ‘image’ reasons; where schools have been inflexible with regard to the siting of central resource bases such as libraries and science labs, despite the access difficulties posed to physically disabled pupils; where schools have been overtly unwelcoming to parents/carers of children with special needs in a manner which has seemed calculated to dissuade them from expressing a preference for that school; where children with special needs have been excluded from schools because of their needs.

The extension of disability discrimination legislation to cover education should help curb such instances of derogatory prejudice and damaging denial of access to facilities and, as such, is to be welcomed.

¹ Disability Rights Task Force (1999) From Exclusion to Inclusion, London, DfEE

² DfEE (2000) SEN and Disability Rights in Education, Consultation Document, London, DfEE, March 2000

The greater discrimination

However, IPSEA’s casework suggests that problems of discrimination of this kind form a very small proportion of the situations in which children which special educational needs are discriminated against. Of the 6,000 plus parents/carers who call IPSEA every year, by far the majority would argue that their children are discriminated against by being denied the supportive special educational provision their needs call for: i.e. they are being denied the fundamental educational right to learn and make progress, at their own pace, to the best of their ability.

How will the extension of the DDA help address the problem of denial of special educational provision, in IPSEA’s view the most serious and prevalent form of discrimination in our school system? The answer is, it won’t, because the Disability Rights Task Force recommended that failure to provide ‘aids and services’ for disabled children should not come within the scope of the new anti-discrimination measures (and the Government have accepted this). Ironically, the DRTF used the same argument as the Conservative Government in 1995: that special education law provides all the protection children need with regard to aids and services:

‘Many disabled children will receive the protection they receive through the SEN legislation. Children with statements, which would include many disabled children, have an enforceable right to the provision specified in the statement which may include auxiliary aids and services. Children with SEN but without a statement will not have an enforceable right but can expect to receive support from the school, and if necessary from external support services, to meet their needs. Their parents do have the legal right, however, to request a statutory assessment if they consider their child's needs are not being adequately met at the earlier stages of the SEN Code of Practice. If the parent is not satisfied with the outcome of such an assessment, or the request for an assessment is rejected, they can appeal to the SEN tribunal.’

(Chapter 4, paragraph 30, DRTF Report, 1999)

Six years on, the claim is no less specious. Children with statements ‘have an enforceable right to the provision specified in the statement’ only when LEAs observe their legal duty to specify special educational provision in Part 3. A growing number flatly refuse to do this. Why? The Audit Commission’s 1992 conclusion is remains apt: ‘ … there is an incentive for LEAs not to specify what is to be provided because they thereby avoid a long-term financial commitment.’³ And IPSEA’s experience is that Labour's Secretary of State for Education is no more willing than any of his Conservative predecessors to use his powers to compel LEAs to obey the law.

Of course, if parents themselves have the confidence and ability to take their case to the Special Educational Needs Tribunal they are likely to win an Order which compels their LEA to quantify in a statement the amount of help their child should receive. If the provision is not made, they can then go to a solicitor and legally threaten the LEA. But what of the rights of those children whose parents, for whatever reason, lack the ability, confidence or resources needed to mount a successful appeal, and to enforce their statements?

The extension to the DDA ignores this problem, by deliberate design. The Government argue that the DDA is not an appropriate framework for legislation which would guarantee the delivery of aids and services to children with disabilities/SEN.

There are other difficulties in the Government's proposals. Unlike people discriminated against on the grounds of disability in other areas of life, pupils and students discriminated against by schools and colleges will not be given the right to go to court and claim compensation. Instead, it is proposed that the Special Educational Needs Tribunal will hear their complaint. The Consultation document does not, however, explain what powers the SENT will have should they find a complaint of discrimination to be justified. Without the power to make Orders which will bind schools and LEAs in terms of their future behaviour and the power to order compensation for the suffering and disadvantage caused by their discrimination in the past, the work of the SENT in this new area will quickly fall into disrepute.

Children are discriminated against by being denied the supportive special educational provision their needs call for: i.e. they are being denied the fundamental educational right to learn and make progress, at their own pace, to the best of their ability.

Children with statements ‘have an enforceable right to the provision specified in the statement’ only when LEAs observe their legal duty to specify special educational provision in Part 3.

But there is an incentive for LEAs not to specify what is to be provided because they thereby avoid a long-term financial commitment.

³Getting in on the Act, Audit Commission/HMI, 1992.

The goal of inclusion

The Labour Government wishes to promote inclusion as well as preserve the right of parents to chose the type of school their child attends: mainstream or special. IPSEA strongly supports both goals, believing them to be in the best interests of children with disabilities and/or special educational needs. But to avoid conflict and to allow parents’ informed choice to add impetus to the growth of inclusion, parents need to be assured that their children will receive the provision and services necessary to support their learning in mainstream schools.

Unless Statements are specific parents will be in the dark about the provision intended for their children. The current situation puts real pressure on parents to opt for what can seem the safest option for their child: a place in a special school. A visit and a look-around tells you roughly what you can expect, whereas with a mainstream school everything depends on the provision in the Statement being clearly specified. Because of their bad experiences with unspecified, inadequate and unsuitable provision, the Special Educational Consortium has described many parents who opt for special schools as 'refugees' from the mainstream.⁴

⁴The response of the Special Educational Consortium to the draft revised Code of Practice on the Identification and Assessment of Special Educational Needs.

The need for an enforcement agency

Governments have never been enthusiastic about enforcing the law on special education. But the DfEE under the present Labour Government has sunk to a new low. In the draft issued in July 2000 of a new Code of Practice on special educational needs, they have withdrawn previous statutory guidance to LEAs on the duty to specify special education provision in Statements (i.e. that normally this means that provision in a Statement must be quantified). Not only does this fly in the face of case law , it will actively encourage LEAs in future to produce unenforceable and legally dubious Statements.

After almost two decades of advising parents and carers of children with special educational needs IPSEA has arrived at the view there is a need for an enforcement agency which would ensure that LEAs fulfil their legal duties towards children with special education needs. In the absence of DfEE interest, the law leaves enforcement to individual parent and carers, which discriminates against those parents who, for whatever reason (lack of confidence, ability, resources, time) are unable to act as legal watchdog to their own LEA. But why should a child have to rely on their parents to police the education system to ensure they get the provision their needs call for, when the law, since 1983, has guaranteed this as of right? And, why should parents have to rely on charities such as IPSEA, when children have legal rights to appropriate provision? How can New Labour, with its concern for the socially excluded, not perceive the double discrimination here against disabled children whose parents, for whatever reason, are less likely to be able to fight for their children's rights?

The extension of the DDA to cover education could have helped but it will not, for by excluding denial of aids and services as a ground for discrimination it misses the biggest issue and ignores the greatest cause of discrimination. It also robs parents and carers of the potential support of the Disability Rights Commission as an enforcement agent, leaving them alone to fight for their children's rights to special educational education.

Strangely, the Secretary of State David Blunkett has responded to recent research from the RNIB⁵ which found 'Too many [children with visual impairment] have to wait for specialist equipment [and] course materials they can read' by claiming that the Special Education and Disability Bill will give such children new rights and make it illegal for Councils to discriminate against them.

It will not.

⁵ "Blind learners denied access", BBC News Online, 1 November 2000