Legislation on disability and Special Educational Needs
*Please also see our page on SEN reforms for updated information.
In May 2001 the Special Educational Needs and Disability Act became Law, strengthening the rights of children and young people with disabilities and Special Educational Needs to be educated in mainstream schools. The accompanying Code of Practice emphasises that all children with SEN, including those with statements, should usually:
- be educated alongside other children in ordinary schools
- have access to a broad, balanced and relevant education which includes the National Curriculum
Placing children in special schools against parents' wishes
Specifically, the Act removes two caveats to Section 316 of the 1996 Education Act which allowed LEAs to override the wishes for mainstream education of disabled children and their parents if the placement:
- was an inefficient use of resources and
- would not meet the special educational needs of the child.
Now LEAs can no longer use these reasons to place children in special schools against parents' wishes. A third caveat, that
- placement in mainstream would be incompatible with the efficient education of other children
has not been removed, but the LEA is obliged to show that there are no reasonable steps that could be taken to prevent incompatibility.
As regards statementing, the new Code of Practice reiterates the LEA's obligation to specify provision, and not get away with vague promises. Paragraphs 8.36 and 8.37 state that:
- 'a statement should specify clearly the provision necessary to meet the needs of the child. It should detail appropriate provision to meet each specified need and quantify provision as necessary'
- 'LEAs must make decisions about which actions and provision are appropriate for which pupils on an individual basis. This can only be done by a careful assessment of the pupils' difficulties and consideration of the educational setting in which they may be educated'.
The main provisions in Part One of the Act, in force from January 2002, are as follows.
- An LEA can only refuse a child with SEN a mainstream place if it can demonstrate that no reasonable steps could be taken to safeguard the 'efficient education of other children'
- Schools must inform parents when they have made any special educational provision for their child
- Schools can request a statutory assessment as well as parents
- Parents and young people should have more say when a statement is being amended
- LEAs must set up and advertise Parent Partnership services and conciliation services
- The SEN Tribunal can set time limits for implementing its decisions
Part Two of the Act, which comes into force in September 2002, is about applying the 1995 Disability Discrimination Act to the provision of service by all education providers. This was left out when this legislation was originally enacted because it was thought the current SEN legislation was adequate, an oversight which has proved to have been wrong. The main provisions of this part of the Act are as follows.
- Schools must not treat disabled pupils less favourably than non-disabled children in education, associated services and exclusions without justification
- 'Justification' will only be a permitted form of selection, or something 'not trivial' relating to an individual situation
- Schools must make reasonable adjustments to accommodate disabled pupils
- LEAs must plan to increase environment access, curriculum access and access to information for disabled pupils. OFSTED will monitor this
- The duties are anticipatory (apply even if they do not currently have disabled pupils)
In case of dispute, the Act provides for remedy through the renamed SEN and Disability Tribunal (SENDIST), which will have an extended remit to hear disability discrimination cases, seek apologies and make enforcement orders.
What the Act means for you
This all sounds very encouraging and it will certainly change the climate towards inclusion in schools and colleges. However it has to be remembered that the legislation was drawn up to compliment and not replace the existing SEN framework. Therefore the 'reasonable adjustments' a school has to make do not include the provision of aids or appliances or other things that would be provided in Part III of the SEN Statement. Similarly, the reasonable adjustments do not include building adaptations to create wider access. These are covered by the new planning duties and are not reasonable adjustments. The new Code of Practice names a number of factors which can be taken into account when determining a reasonable adjustment. Clearly these have the potential to reduce the impact of the Act and only the Courts and Tribunals will determine what is reasonable. However two things are clear. The new legislation was designed to improve access of disabled children to mainstream education. Secondly schools, LEAs and colleges should operate from a good practice model as institutions committed to equal opportunities. This means reviewing all existing practices, policies and procedures for possible disability discrimination and, bearing in mind the anticipatory nature of the Act, this process should start now.