Memorandum submitted by William Evans
THE LANGUAGE OF SPECIAL EDUCATIONAL NEEDS
PRELIMINARY
1. I am a practising solicitor. From 1969
to 1986 I worked for local authorities, including responsibility
for the legal work of Education Committees. From 1986 I was secretary
and in-house solicitor to other public bodies. Since retiring
from full-time work in 1997 I have worked as part-time company
secretary and in-house solicitor to some small local educational
charities. I have chaired the governing body of an inner-city
secondary school. From 1994 to early 2005 I was a part-time chairman
of the Special Educational Needs Tribunal.
2. This memorandum is directed at bullet
points 6 and 8 of the Education and Skills Committee's press release
dated 21 July 2005:
— "How special educational needs
are defined", and
— "The legislative framework for
SEN provision and the effects of the Disability Act 2001 which
extends the Disability Discrimination Act to education."
3. The gist of this memorandum is that the
vocabulary of SEN, deriving from the legislation, has become outdated;
that it is now out of kilter with the vocabulary of disability
in both law and good practice; that that divergence creates particular
difficulties for the implementing of much recommended good practice
and some policies, particularly inclusion; and that a thorough
review of SEN law is desirable, starting with redefining the concepts
and updating the language used in SEN law and hence in SEN work.
4. What follows contains my personal views.
In particular, nothing in this memorandum should be taken as representing
the views of any of my past or present employers, or the Special
Educational Needs Tribunal.
HOW THE
PRESENT LAW
CAME ABOUT
5. As Members will know, the current law
of SEN is contained in the Education Act 1996, as amended by the
SEN and Disability Act 2001. The 1996 Act largely repeated provisions
in the Education Act 1993, which introduced a code of practice
and a statutory tribunal to decide certain types of dispute between
parents and local education authorities, but otherwise substantially
re-enacted the Education Act 1981. The 1981 Act was based on recommendations
of a committee chaired by Mary Warnock (Cmnd 7212), which reported
in 1978 but had done much of its work from 1973. So the law we
try to operate today is based on ideas formulated more than 30
years ago.
6. Before Warnock, what we now call
SEN law was an irregular patchwork of uncoordinated provisions,
many confined to pupils with particular descriptions of disability.
Its vocabulary was inconsistent and disorderly. In place of the
10 descriptions of what were then called handicaps, listed in
regulations made in 1959, Warnock proposed, and the 1981 Act introduced,
generalised concepts of learning difficulty, special educational
needs, and special educational provision. All were defined in
terms of difference from the norm.
THE PRESENT
STATE OF
THE LAW
7. Apart from a code of practice, now in
its second edition, a statutory tribunal to determine appeals,
and a small extension of its jurisdiction over certain types of
disability discrimination claim, SEN law remains much as it was
in 1981, as do the concepts and the vocabulary used in the legislation.
Those concepts and the vocabulary are adopted by people involved
in SEN, whether in schools, the NHS, voluntary organisations,
local and central government or the professions, or as parents.
8. As Members will know, the basic framework
of SEN law is that schools must identify pupils with SEN and make
special educational provision for them accordingly. If a pupil's
needs are so severe or complex that the school is not likely to
be able to meet them from the resources normally available to
schools in the area, the local education authority must carry
out a statutory assessment of the pupil's needs. If those needs
call for provision beyond what local schools can normally be expected
to deliver out of their delegated resources without external help,
the authority may be required to issue a statement of special
educational needs specifying what special educational provision
the pupil should receive. That special educational provision is
different from, or over and above, what most pupils receive. It
may be delivered in a mainstream school (which may have a special
unit) or a special school, maintained or independent. Regulations
prescribe detailed requirements at various stages and in various
circumstances.
9. The key word, repeated throughout the
legislation, is "special". At every stage pupils with
special educational needs are thus distinguished from "ordinary"
or "normal" pupils. They are identified by whether they
have a learning difficulty, which is defined in terms of the pupil
having more difficulty in learning than most. Pupils' needs are
assessed by methods which compare their cognitive abilities, capabilities
and attainments with those of the majority of pupils. Delivery
of educational provision for pupils so identified will be "special"
and will often be "differentiated". Unlike other pupils,
they will have individual education plans. Because the vocabulary
permeates the whole system, and so influences the way people think,
speak and behave, the whole system distinguishes pupils with SEN
as "other".
HOW WE
USE THE
WORD "SPECIAL"
10. Since 1981 there have been changes in
the way people at large in the UK use the word "special"
outside the context of SEN. In some contexts the word has been
evacuated of meaning by marketing hype, eg special offers, chef's
specials. Sometimes "special" is a euphemism to disguise
what we do not wish, for various reasons, to be specific about,
eg special clinics, special forces, special operations. A school
may be described diplomatically as being in special measures.
Some people may use "special" as a term of abuse, a
point noted by Mark Haddon in chapter 71 of The curious incident
of the dog in the night-time. But mostly we use "special"
to distinguish: to indicate difference from the norm, otherness.
HOW THAT
CREATES PROBLEMS
FOR INCLUSION
11. The Education Act 1976 required local
education authorities to arrange for special education to be delivered
in mainstream schools except where impracticable, incompatible
with efficient education, or involving unreasonable expenditure.
Since the late 1990s UK government policy has been that so far
as possible pupils with SEN should be educated in mainstream schools.
This memorandum is not about the politics of inclusion, or whether
such a policy is justifiable or preferable, or what limits, if
any, such a policy should have. This note accepts, as fact, that
inclusion is government policy, and that government expects local
education authorities and maintained schools to implement it.
Inclusion has become indirectly almost a statutory duty, because
it is advocated in the Secretary of State's code of practice,
to which the 1996 Act requires everyone making decisions about
a pupil with SEN to have regard. The only explicit statutory provision,
however, is one in the 2001 Act (s.1, amending s.316 in the 1996
Act) reinforcing a parent's right in certain circumstances to
choose a mainstream school, as distinct from a special one. The
word "inclusion" does not appear in the legislation.
It is not a legal technical term.
12. Schools and local education authorities
find it hard to implement inclusion. Some difficulties are to
do with whether they have enough resources for special education;
some with how councils and schools fix their priorities and deploy
the resources they have; some with how far local education authorities
and schools should be free to exercise local discretion as distinct
from doing what central government wishes; some with parents objecting
to their children being educated with pupils with SEN, especially
behavioural difficulties; some with how schools should manage
behaviour, and the stances taken by teachers and those who represent
them. But in addition to and underlying all these difficulties
are conflicts and inconsistencies created by the vocabulary of
SEN, which is not based on a concept, let alone a presumption,
of including pupils with SEN in mainstream schools alongside their
peers, but on rules which require that they be identified, distinguished,
and treated differently.
THE LANGUAGE
OF SEN AND
THE LANGUAGE
OF DISABILITY
13. The language of SEN law, and hence the
language of SEN generally, is now out of joint, not only with
policies to do with inclusion, but also with modern ideas about
disability discrimination. When the 1981 Act came into force,
the only UK statute relating to disability at large was the Chronically
Sick and Disabled Persons Act 1970, a private member's bill passed
without government support. The 1970 Act imposed a qualified duty
on councils in their capacity as local social services authorities
to make a limited range of services available to people with certain
descriptions of disability. UK law then had no concept of disability
discrimination.
14. While the concepts and vocabulary of
SEN have remained static since 1981, the vocabulary of disability,
like its politics, has moved on. In particular, much of the law
relating to people with disabilities is now about discrimination,
and about removing, avoiding or overcoming obstacles to social
inclusion. We have developed, at any rate in the public and voluntary
sectors, a language of disability that tries to be alert to how
people with impairments feel about how they are described or referred
to. That is reflected in current legislation, and in the guidance
issued by public and voluntary bodies concerned with people with
disabilities. It is under the head of disability discrimination
that the law has developed, especially since the Disability Discrimination
Act (DDA) 1995, and it is still developing.
15. That suggests one possible way forward.
Not all pupils with SEN are disabled, as the DDA uses that term.
Nor does every disabled pupil, as there defined, necessarily have
SEN. The concepts overlap. It would be helpful if the law that
applies to both sets were to be consistent, and to use consistent
vocabulary. A new Warnock might usefully review the vocabulary
of SEN in the light of current thinking and values about disability,
and might helpfully update both the terms used in SEN law and
the labels people who work in SEN are expected to apply to pupils.
16. Going further, a new Warnock might recommend
complete restructuring of SEN law so as to remove from the whole
sphere concepts and procedures, not just words, that create otherness.
17. Mainstream education having been largely
excluded from the general implementation of the DDA 1995 as a
special case, the 2001 Act introduced the concept of disability
discrimination into maintained sector education. The 2001 Act
was limited in its scope, and in the remedies it provided. Those
limitations are reflected in how narrow the jurisdiction of the
Special Educational Needs Tribunal is over disability discrimination
claims and how limited the range of orders the Tribunal can make.
That may be one explanation for the unexpectedly low numbers of
claims made to the Tribunal. But the 2001 Act does suggest another
way forward. A radical possibility might be to abolish SEN law
altogether as a discrete area of public law, and instead to assimilate
SEN into the general law of disability discrimination. The issues
for parents, local education authorities, schools and tribunals
would then be, not whether the pupil should be assessed or should
have a statement, but whether the pupil is a disabled pupil and
if so, whether the school or the local education authority (or,
some would add, the local social services authority and the NHS)
have made reasonable adjustments as required by the DDA. That
would require primary legislation, not least to extend the definition
of disability and cognate expressions. It would still be helpful
to have a code of practice to give guidance on what is good practice,
on what calls for an adjustment, and on what adjustments may or
may not be reasonable; it would also still be helpful to have
a tribunal to determine disputes. Problems to do with resources
and their deployment would remain, but at least decisions about
meeting pupils' needs would be made using concepts and vocabulary
consistent with modern expectations and values surrounding impairment,
and the focus would be on what the school should do rather than
on what the pupil cannot.
August 2005
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