Include and support
IPSEA’s response to the Government’s Consultation on the ‘Special Educational Needs and Disability Rights in Education Bill’
- Part One: Disability Discrimination in Education
- Part Two: Improving the law on special education
- Part 3: Conclusion
Part One: Disability Discrimination in Education
A. Welcoming the extension of the DDA 1995 to cover education
When the Conservative Government introduced the Disability Discrimination Act (DDA) 1995, the absence of measures to deal with discrimination in education were justified by the claim that special education law was so effective that disabled children in schools needed no further or additional protection or rights. It was a specious claim, and it was no surprise when the Disability Rights Task Force advised the Labour Government correct the omission by enlarging the scope of the DDA to cover discrimination in education.
The Government now propose doing this.
The definition of a disabled pupil or student, based on the DDA 1995, will be a child or young person 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.”
(s1(1) DDA 1995)
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 the DfEE say that, by this definition, “not all disabled children will have special educational needs …”, it is clear that the overwhelming majority of the 250,000 plus children who are statemented as having special educational needs will fall within the legal definition of ‘disabled’ and come within the scope of the extended anti-discrimination legislation.
IPSEA welcomes this development, for children with special educational needs are discriminated against in schools. IPSEA’s case files includes examples of children with special needs being permanently excluded from schools because of their needs; of children with Down’s Syndrome being left out of school trips and school photos for ‘image’ reasons; of schools being 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; of schools being unwelcoming to parents/carers of children with special needs in a manner calculated to dissuade them from expressing a preference for that school.
If the extension of the DDA to cover education can curb such instances of derogatory prejudice and damaging denial of access to facilities, then it will be welcomed by young people and their parents/carers.
However, in IPSEA’s experience, problems of discrimination of this kind form a very small proportion of the situations in which disabled children are being denied their educational rights. Of the 2,000 plus parents/carers calling IPSEA every year, by far the majority seek help with obtaining the special educational provision their children’s needs call for, which supposedly is protected by legally entitlement.
B. Excluding denial of services
How will the extension of the DDA help address the problem of denial of special educational provision? The answer is, it won’t, because, the Disability Rights Task Force (DRTF) 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 Bill reflects this.
Ironically, in making the recommendation, 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 specialist provision:
“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.”
(Paragraph 30, DRTF Report, 1999)
Six years on, the claim is no less specious. Yes, children with statements “have an enforceable right to the provision specified in the statement”, which is precisely why many LEAs doggedly refuse to specify provision in Part 3 of a statement. The Audit Commission’s 1992 findings remain as true, if not more so, today:
“ … there is an incentive (under existing law) for LEAs not to specify what is to be provided because they thereby avoid a long-term financial commitment.”
(Audit Commission/DfEE, Getting in on the Act, 1992)
Yes, if parents have the confidence and ability to take their case to Tribunal, they are likely to get an Order which compels their LEA to quantify in a statement the amount of help their child should receive. Then they can go to a solicitor and legally threaten their LEA, if they have the confidence and the money. But what of the rights of those children whose parents are not able to operate in this campaigning litigious manner? Who enforces their statements?
Failure to provide aids and services for disabled children should not come within the scope of the new anti-discrimination measures, according to the consultation document
C. Excluding denial of aids
By excluding a failure to provide appropriate aids to children who need them from the definition of discrimination, the Government is risking serious anomalies which will undermine the intention to increase access to mainstream school. For example, IPSEA’s casework includes a situation where a school arranged adaptations to its building to make it wheelchair accessible, including installing ramps, but the young person’s wheelchair was not able to negotiate the incline. Despite this obvious practical and mechanical difficulty, it proved impossible for the parents to obtain a suitable wheelchair from either the Education or the Health Authority. Finally, they bought a chair themselves, for £5,000. A high price for a parents to pay for their child’s right of access to education.
The Government is risking serious anomalies which will undermine the intention to increase access to mainstream school
D. The weakness of the proposed Code of Practice
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. Instead, there is to be a Code of Practice which will “give practical guidance and advice on how education providers can meet their new duties”, but the Government do not intend to create a legal duty on providers to have regard to this Code. This will severely undermine its effectiveness.
E. Limited rights of redress
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, the Bill proposes that the Special Educational Needs Tribunal hears their claims. The consultation document does not, however, explain what powers the SENT will have should they find a complaint of discrimination to be justified. IPSEA believes that, without the power to make Orders which will bind schools and LEAs in terms of their future behaviour and the power to provide 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.
Recommendations
The Government should think again about the exclusion of provision of aids and services. In practice, the guarantee of provision which exists in special education law relies on individual parents being able and knowledgeable enough to enforce it. If denial of aids and provision constituted discrimination under the DDA, the Disability Rights Commission could play the watchdog and policing role, which would greatly benefit disabled young people and their parents/carers.
Providers of education should have a legal duty to ‘have regard to’ the Code of Practice, as is the case with the Code of Practice on special educational needs and provision
The SENT must be able to provide redress in terms of requiring improved future treatment of young disabled people discriminated against in school and recompense for the discrimination they have suffered in the past. Otherwise the role of the SENT will be limited to forcing a provider to apologise and promise to ‘be better in the future’. LEAs will simply make it someone’s job to go around apologising to young people discriminated against, thereby avoiding Tribunal hearings. It will be perceived as a patronising and insufficient remedy, will discourage complaints and will risk damaging the otherwise high reputation for fairness and effectiveness enjoyed by the SENT.
The Government should think again about the exclusion of provision of aids and services.
Part Two: Improving the law on special education
IPSEA welcomes many of the changes proposed by the Government and believes that they will enhance the delivery of special educational provision to children and young people with special educational needs.
Our reservations remain, however, with regard to the plans for LEA-recruited ‘independent’ parent advisers (perceived as a contradiction by many parents) and ‘conciliation schemes’ (which risk diverting parents from using their legal right to appeal to the SENT – the only body with the power to make Orders which bind LEAs). These reservations have been previously explained to the Government, and will not be repeated here.
The most pressing issues, in IPSEA’s view, continue to be ignored by the Government and this response focuses on the need for legislative change which would address three of these issues:
- inclusion as a choice for parents;
- the crucial importance of provision in statements being quantified;
- the need for an enforcement mechanism.
A. Inclusion: the caveats
The arguments for inclusion seemed to have been accepted by the Government in their 1997 Green Paper, but they have signally failed to find a way forward on the issue in terms of legislation. The proposals in paragraph 20 of Annex B of the consultation document, if enacted, would create a novel inequality between parents expressing a preference for a special school, which under the new law, it seems, would be legally binding on LEAs; and, parents expressing a preference for a mainstream school, which would not be binding on LEAs:
“The principles of the new provision would be that a child with SEN shall (DfEE emphasis) be educated within a mainstream setting unless … this is incompatible with the wishes of his or her parents.”
Paragraph 20 claims the first caveat to section 316 of the Education Act 1996, which allows an LEA to deny inclusion on the grounds of a school not being able to meet a child’s needs, is the caveat most commonly cited by LEAs. We know of no evidence or research to back this claim. Our own casework suggests that the third caveat (inefficient use of resources) is the most commonly cited. In any event, it is clear that the proposed juggling with the wording of the caveats LEAs will enable LEAs to continue citing resources and cost issues to deny inclusion.
Has the Government really thought through the implications of compelling parents who want a mainstream school place to jump through the hoops of conciliation and Tribunal appeal, while backing with mandatory legislation the wishes of parents whose preference is for a special school place ?
Paragraph 21 reinforces the impression that this issue has not been thought through sufficiently by stating that, despite the caveats proposed in paragraph 20, inclusion should only be refused in the small minority of cases where it can be demonstrated that the interests of all children cannot be safegaurded.
Taken together, it is not clear how many caveats the Government are proposing: is it three, two or one?
IPSEA has agued for some time now for all caveats to be removed and for chidren with special educational needs to have their education provided for, including their special educational needs, in mainstream schools where this is the parent’s wish. No doubt the confusion in the proposals has resulted from pressures from LEA and teachers’ unions not to give parents the power, as they see it, to require their children to be admitted to mainstream schools. No doubt the argument has been that this will damage the interests of the other children in those schools. IPSEA does not advocate the use by schools of their temporary and permanent exclusion powers in relation to children with special educational needs … but this particular argument does require us to remind the Government that these powers are in place, and are extensively used by schools when believed to be necessary. Removing all three caveats, therefore, would not pose a threat to other pupil’s welfare or education which schools would be unable to deal with.
Our own casework suggests that the third caveat (inefficient use of resources) is the most commonly used to prevent inclusion
B. Inclusion: the limited scope of parental preference
Parents may only express a preference for a mainstream school following the very first formal assessment of their child, which could take place at pre-school age. Following subsequent assessments and amendments to a statement, a parent has no legal right to express a preference for a school, nor does an LEA have the duty to comply with this preference, nor may a parent use denial of their preference as the basis of an appeal to the SENT. This is because the statement amendment procedures, which are set out in Schedule 27(10) to the Education Act 1996, do not give parents the right to express a preference for a school, nor give LEAs the duty to comply with that preference.
IPSEA believes that this situation was created inadvertently by the DfE in 1992/3 when drafting what was to become the Education Act 1993. At the time we protested that it would limit a parent’s choice of school at crucial stages in their child’s development, most crucially, at primary to secondary transfer, when statements must be amended to name a new school. In practice, most LEAs continued to invite parents to express a preference and, when first established, the SENT ruled on appeals in situations where statements had been amended and parent’s preferences denied. More recently, however, the SENT has adopted the practice of not admitting arguments based on parental preference and LEA duty to comply in appeals against amended statements.
This represents a severe limitation on the right of a parent of a statemented child to express a preference for a school. It is a limitation which IPSEA believes is discriminatory and which should be removed by Government during this round of legislation, for it undermines not only the advances which are claimed will follow with regard to inclusion, but parents’ rights generally.
This is a limitation which IPSEA believes is discriminatory and must be removed by Government during this round of legislation, for it undermines not only the advances which are claimed will follow with regard to inclusion, but parents’ rights generally
C. Inclusion: the limited scope for requesting a change of the school named on a statement
Under Schedule 27(8) of the Education Act 1996, a parent may request the name of the school on a child’s statement to be changed and appeal to the SENT if their LEA refuse. This right is severely impaired at present, however, by the SENT’s powers in such appeals being limited to ordering a change to Part 4 of the statement (school or type of school).
Commonly, Part 3 of a statement (special educational provision) makes implied reference to the type of provision to be made in the school the child currently attends (i.e. the provision indicates the type, whether mainstream or special), which means that there is often a need not only to change the school in Part 4, but also to make changes to some of the provision in Part 3 in order to make Parts 3 and 4 compatible.
When considering an appeal from a parent who has had their request for a change of school turned down, we believe the SENT should have the power to hear the case for and against changes to the child’s needs and provision and to order changes, if needed, to Parts 2 and 3, as well as to Part 4 of a statement.
This would greatly reinforce the parental right to request a change of school, which the law clearly intends to give parents, but in its present form cannot.
D. Quantifying special educational provision in statements
In IPSEA’s experience, the major problem with special education law is that (contrary to the claims of the Conservative Government in 1995, the DRTF and the current Government) it does not protect or guarantee provision for children with special educational needs.
IPSEA believes it essential for there to be a clear, unavoidable duty in law to quantify the special education provision a child should receive in Part 3 of a Statement. Despite the fact that the Code of Practice and the High Court have made it clear that, normally, special educational provision should be quantified, many LEAs flatly refuse to do so, except in the minority of cases when they are taken to the Tribunal by parents and ordered to do so. It is necessary, to protect the interests of the majority of children with statements, for the 1996 Education Act to be amended in order to create a mandatory duty for LEAs to specify the type and quantify the amount of special education provision in a statement, not ‘specify’ it. LEAs will argue that children’s needs require that statements be flexible enough to change the provision as their needs change. But this is a misleading argument (commonly made to parents), as the overwhelming majority of children with statements of special educational needs have stable needs, arising from disabilities and learning difficulties which they were born with and which they will have all their lives. The argument also disregards the fact that the law at present empowers an LEA to change a child’s provision by amending the statement after a period of only fifteen days to allow parents to comment on the changes proposed.
E. LEAs’ duties: the need for an enforcement agency
A necessary change to existing law is the creation of an enforcement agency which would ensure that LEAs cease disregarding their legal duties towards children with special education needs. At present, 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. 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? How can New Labour, with its concern for the socially excluded, not perceive the double discrimination here against children who are both disabled and from less advantaged backgrounds?
Recommendations
All three caveats should be removed from s316 of the 1996 Education Act, giving all parents, not just those seeking a special school placement for their child, the clear right to choose the type of school to be named on their child’s statement, and the right to appeal against the specific school named if they are unhappy with it.
The right to express a preference for a type and named school should be given to parents following re-assessment and at any time when statements are amended, together with the right of appeal to the SENT against an LEA’s failure to comply with their preference.
The SENT should be given the power to order changes to Parts 2 and 3 of a statement when parents appeal against an LEA’s refusal to comply with the request for a change of the school named in Part 4.
S324 of the Education Act 1996 should be amended to replace the requirement, in Part 3 of a statement, to specify special educational provision with the requirement to specify the type and quantify the amount of special educational provision.
The Government should establish an enforcement agency which would remove from individual parents the sole responsibility for policing LEAs’ observance of the law on special education.
Part 3: Conclusion
The Government wish to promote inclusion as well as preserve the right of parents to choose 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 for the risk of contradiction to be avoided and for parental 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 and until statements are quantified parents will be in the dark about the provision intended for their children.
Unless and until there is an agency to enforce statements, parents have no guarantee that their children will receive the provision setout in their statement.
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 quantified and the LEA obeying their legal duty to arrange the provision, so mainstream can be a gamble.
IPSEA believes that there will be little progress on inclusion until the law works as it was intended and statements do, in fact, protect and guarantee provision. The extension of the DDA to cover education, because it excludes aids and services, will not help. Amendments to the Education Act 1996 to make quantification mandatory and the establishment of an enforcement mechanism to replace the individual parent as policeman, would be more effective and more beneficial to pupils with special educational needs and disabilities.