Memorandum submitted by the British Council
of Disabled People
The British Council of Disabled People represents
over 130 organisations with different impairments which includes
those with learning difficulties and autism. Our membership includes
People First and DANDA in addition to organisations and campaigns
such as the Alliance for Inclusive Education and 2020 Campaign
to End Segregated Education by 2020[1].
Many of the disabled people involved in such campaigns are themselves
special school survivors.
POSITION STATEMENT
BCODP have passed a motion at its AGM which
has become a policy to campaign for the ending of segregated education
for disabled children by 2020. BCODP wants to see the ending of
all segregated education and would welcome any robust legislation
to make this happen.
INCLUSIVE EDUCATION
Inclusive Education is an education system which
welcomes all children regardless of type and severity of impairment.
The underpinning philosophy is that the education environment
is shaped by its pupils who attend the school rather via versus.
The latter assumes that some disabled children will never benefit
from a supported mainstream school placement, as implied by the
Education Act. The former assumes it is not the child's impairment(s)
that is the barrier, but how their education is organised which
underpins a legal framework that supports parallel schooling for
disabled and none disabled children in different types of schools.
EVIDENCE
The Alliance for Inclusive Education[2]
and Disability Equality Into Education[3]
are submitting evidence to illustrate how inclusive education
can work for disabled children with different impairments'. And
further Ofsted[4]
have produced reports stating that none of the children's education
has been adversely affected by disabled children's inclusion.
Additionally disabled young peoples opportunities and self-esteem
is adversely affected by their attendance at a special school.[5]
BCODP will therefore be submitting evidence on how the 1996 Education
Act together with Special Educational Needs and Disability Act
prevents disabled children from having a supported mainstream
school. This submission compliments rather than substitutes the
evidence already provided by two BCODP member organisations.
LEGAL FRAMEWORK
The 1981 Education Act was the first piece of
legislation which gave disabled young people a "right"
to mainstream education, albeit not a legal one! It was not until
1996 Education Act that disabled young people and their parents
were able to legally access a mainstream school placement if successful
on appeal. And in 2001, the Special Educational Needs and Disability
Act "strengthened" the rights of disabled children to
attend mainstream schools by providing an overall duty for LEA's
to consider parents preference for mainstream provision and extending
the Disability Discrimination Act provisions to provide for disability
discrimination within education settings.
HOW DOES
THE LAW
WORK IN
PRACTISE?
BCODP members have over the years supported
disabled young peoples struggles for inclusive education through
a number of ways, by providing advocacy including the representation
at Special Educational Needs Tribunals and thereafter assisting
with High Court appeals like recent MH v London Borough of Hounslow
case[6],
through supporting high profile campaigns like Niki Crane to raise
the issues of injustice and responding to Government policies
and consultations.
THE LAW
CREATES AN
INJUSTICE BY
ALLOWING LOCAL
AUTHORITIES TO
SEGREGATE CHILDREN
The SENDA was supposed to make the law governing
children's rights to mainstream education easily understood and
easier to use when necessary by pupils and their families. However,
what has happened is practise is that the law governing disabled
children's rights to mainstream education has become more complicated
and harder for young people and their families to understand and
use. The law is complicated—so much so that even Special
Educational Needs Tribunals panels who are chaired by lawyers
with a minimum of seven years post qualifying experience have
difficulties with understanding the law governing inclusion!
THE LAW
PROVIDES A
TWO TIER
SYSTEM OF
RIGHTS BETWEEN
DISABLED CHILDREN
WITH AND
WITHOUT STATEMENTS
OF SEN
SENDA has actually created a two tier system
of rights between different groups of disabled children. Disabled
children can not be sent to a special school if one is fortunate
enough to access appropriate provision within their own school
resources. However, if the mainstream school can not provide the
support needed within their own resources then the disabled child
loses his/her legal right to a mainstream school placement. This
is because the LEA can consider and name a special school in a
child's statement of SEN. This is discriminatory and unjust. There
are parents who will not seek the additional support in fear of
the local authority and thereafter the tribunal ordering the child
to attend a special school.
THE LAW
PROVIDES AN
ART BURY
METHOD FOR
DECIDING WHO
WILL OR
WILL NOT
BENEFIT FROM
RECEIVING A
SUPPORTED MAINSTREAM
SCHOOL PLACEMENT
Section 316A and Schedule 27(3)
These main clauses and schedules deal with the
law governing both the LEAs and SENDIST's panels' consideration
of a mainstream school placement for a disabled child. Section
316 centres upon firstly whether the child's education would affect
the efficient education of the other children and thereafter their
general duty to comply with a parent's preference for mainstream
education.
EFFICIENT EDUCATION
OF OTHER
CHILDREN
The s(316) Inclusive Education guidelines have
been used to prevent the inclusion of disabled children, particularly
those with severe and profound learning difficulties into mainstream
schools even though it's intention was to ensure that a child
with severe EBD did not impinge upon the efficient education of
other children. The problem is once a law permits segregation
even for one child then a whole legal and appeals procedure must
be put in place which diverts resources from providing for children's
schooling into paying legal costs. This results in all disabled
children's legal rights to mainstream schooling being undermined.
Section 316A and associated Inclusive Schooling
guidance deals with the LEA's overall duty to consider parents
preference for a mainstream school placement whilst schedule 27(3)
focuses on the naming of a particular school in the child's SEN
Statement. The "Inclusive Schooling" Guidance makes
it clear that the tribunal panel on appeal must satisfy themselves
all reasonable steps have been taken to ensure that the child's
education is compatible with the efficient education of the other
children before naming a special school placement. Tribunal panels
can consider whatever factors they wish and what weight should
be given to each of them when making an order to include a named
mainstream school. Such weight given to such factors like costs,
practicality and disruption will vary between panels. Indeed,
the suitability and costs under schedule 27(3) are and have been
considered by tribunal panels when considering any mainstream
schools under section (316). So therefore children are at the
whim of the tribunal's panels on what factors they would like
to consider on the day! As a consequence, two different tribunal
panels with exactly the same evidence and facts can arrive a different
decision on whether a child should be placed in a mainstream school
simply based on what weight they wish to give for each of the
factor and whether reasonable steps can be taken. Such a system
is very arbitrary which allows disabled children to be segregated
simply on the subjective assessments carried out by three allegedly
independent persons who in the main represent the professionals
that already believe that some children ought to be segregated
simply on the grounds of the type or severity of "impairment"[7].
THE LAW
CREATES EXTREME
DIFFICULTIES FOR
DISABLED CHILDREN
WANTING TO
TRANSFER FROM
A SPECIAL
TO MAINSTREAM
PROVISION
Schedule 27(8) governs disabled children's rights
to change schools on a yearly basis. This provision makes it almost
impossible for disabled children to transfer from special to mainstream
school provision unless the LEA would agree to carry out a statutory
assessment without too much fuss[8].
Disabled children must go through the whole statutory assessment
and statementing process which can include a further three tribunal
appeals[9]
over a 12 month period. This is a large disincentive for children
and parents to make a fresh appeal if after the tribunal or LEA
have named a special school in the child's statement or after
giving special schooling a go. This has arisen because s(316)
the general duty to consider a parents preference for a mainstream
school only applies when the LEA have issued a proposed statement
of SEN and that the LEA and tribunals can only consider changing
the name rather than type of school under schedule 27(8).[10]
THE LAW
IS INEFFECTIVE
FOR ENSURING
THE LEA DOES
ARRANGE IMPLEMENTATION
OF A
TRIBUNAL ORDER
Even after the tribunal have ordered a mainstream
school placement with appropriate support, there are no incentives
for LEAs to comply with its implementation. The only redress children
have is judicial review which can be expensive and lengthy and
where such judicial remedies are discretionary including the use
of injunctions. Such applications can take up to four months and
even longer. This therefore leaves children without any effective
and speedy remedy where LEAs have decided to drag their feet or
frustrate the implementation of a tribunal order[11].
DISABILITY DISCRIMINATION
ACT
The Disability Discrimination Act has had benefits
for disabled children who require accessible buildings and classrooms
and where some adaptations is required in school policies to ensure
disabled children are not treated less favourably (White)[12].
And that the courts had made it clear that schools which deliberately
avoid arranging educational provision will also be considered
as disability discrimination (Buniak). However, the law governing
disabled children's access to mainstream education does not provide
sufficient legal safeguards despite the amended Disability Discrimination
Act 1995's to include education and the Disability Discrimination
Act 2005 which has emphasised LEAs and Schools duties only to
not discriminate but also to promote disability equality. This
is because many children with SEN labels are not covered by the
Disability Discrimination Act. Such children are those who have
EBD but without a "medical" mental health diagnosis
such as ADAH. As a consequence, such children can not challenge
disability discrimination even if they are treated less favourably
simply because of having a statement of SEN. BCODP know in some
instances that no mainstream school will accept a child with "Challenging
behaviour" regardless what provision the LEA is or willing
to provide. Such discrimination can not presently be challenged
under the DDA unless the child has a "medically" recognisable
mental health diagnosis.
BCODP do not think that parents should decide
on which type of education their child should receive. BCODP considers
that all disabled children must be supported to attend a mainstream
school. This is because many parents base their decision on their
inability to see that their children can be included in mainstream,
lack of experience of seeing disabled children positively included
in mainstream schools and the wider community and the fear of
professionals.
RECOMMENDATIONS
— All disabled children have an absolute
legal right to attend a mainstream school regardless who arranges
the provision that is required.
— All disabled children have a legal
right to an assessment of need which underpins the social model
of disability.
— All disabled children have a legal
right to be given the support they need to access mainstream education
including homework, extra curricular activities and school trips.
— All disabled children are entitled
to a quick legal remedy if local authorities continue to breach
their legal duty with arranging the provision and school placement
to facilitate their inclusion.
— A legal framework for ensuring all
local authorities will have the capacity by 2020 to support every
disabled child's access to mainstream provision which includes
the phasing out of special school provision, or at least in the
state sector.
— One legal framework for dealing with
all disabled children which includes those labelled as having
SEN.
BCODP would like to provide oral evidence explaining
how the law must be amended and replaced so that all children
have a right to attend their local mainstream school.
October 2005
1 1 2020 Campaign To End Segregated Education. Back
2
2 Alliance for Inclusive Submission. Back
3
3 Disability Equality Into Education Submission. Back
4
4 Inclusion and Pupil Achievement DfES RR578 2004. Back
5
5 Rustemier S, "The Case Against Segregation Into Special
Schools-A Look At the Evidence." 2003. Back
6
6 [2004]. Back
7
7 Brandon S, "The Invisible Wall-Niki's Fight To Be Included",
Parents With Attitude, 1997. Back
8
8 IPSEA case work and recent campaign pledges. Back
9
9 Refusal to undertake a statutory assessment, refusal to issue
statement and thereafter contents of the statement. Back
10
10 Slough BC v Mr and Mrs C 2004. Back
11
11 Levenes Law Firm has and still deals with judicial review cases
involving non implementation of tribunal orders for mainstream
school provisions. Back
12
12 2002. Back
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