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Disability Rights Commission submission of evidence to the Education and Skills Select Committee concerning Special Educational Needs 3 October 2005Executive SummaryThe Disability Rights Commission (DRC) was created by the Disability Rights Commission Act (DRCA) 1999.
The DRC is uniquely placed to comment on the provisions of the DDA as the statutory body responsible for the legislation and we would encourage the Committee to invite DRC to give evidence when considering its provisions.
· The DRC has set itself a vision of; "A society where all disabled persons can participate fully as equal citizens". · The DRC believes that any discussion on the education of disabled children should begin from the point of how our schools can improve the quality of experience and the outcomes achieved by disabled young people. · Central to achieving this goal will be the successful implementation of the Disability Equality Duty, as set out in the Disability Discrimination Act 2005, which has introduced a duty on all public authorities to promote equality for disabled people. · It is necessary to address the shortfalls and problems in mainstream provision to improve the quality of experience and outcomes for disabled young people. It is not sufficient to accept low quality outcomes from mainstream schools as the basis for supporting special schools. · Successful delivery of the SEN process should be measured by the effect it has on the participation and progress of children with SEN and disabled children. This is more than appraising whether the system is 'meeting needs', it is about promoting full participation and supporting children to reach their potential. · There are a number of concerns about the quality of education provision in special schools. The DRC believes that inclusive schooling is key to tackling the roots of discrimination in society. · The DRC supports the presumption contained within SENDA that a mainstream placement should remain the preference for all children unless it is against the parents or child's wishes or the effective education of other children. Contents1. Background2. The extent and nature of the exclusion of disabled people from education - key facts3. The legislative framework for SEN provision and the effects of the Disability Act 2001, which extended the Disability Discrimination Act to education 3.1 Background 3.2 Definitions 3.3 Coverage of the different legislation 3.4 Awareness 3.5 Difficulties with enforcement - The SENDIST 3.6 Difficulties with enforcement - Independent Appeal Panels and Admissions Panels 3.7 Children in Care 3.8 Opportunities to review the legislation
4. Moving to an outcome focussed system of provision
5. Disability Equality Duty
6. Provision for SEN pupils in 'mainstream' schools: availability of resources and expertise; different models of provision 6.1 Provision for disabled pupils in mainstream schools 6.2 Resources and expertise 6.3 The role of associated service delivery 6.4 Different models of provision
7. Provision for SEN pupils in Special Schools 7.1 Background 7.2 Human rights and 'good relations'
8. Raising standards of achievement for SEN pupils 8.1 Background 8.2 Accessible learning environments 8.3 Curriculum
9. The system of statements of need for SEN pupils ('the statementing process') 9.1 The DRC's remit on this topic 9.2 Principles 9.3 Coverage
10. The role of parents in decisions about their children's education
11. How special educational needs are defined
12. Provision for different types and levels of SEN, including emotional, behavioural and social difficulties (EBSD)
1. Background
1.1 The Disability Rights Commission (DRC) was created by the Disability Rights Commission Act (DRCA) 1999. Section II of the DRC Act imposes the following duties on the Commission:
· to work towards the elimination of discrimination against disabled persons; · to promote the equalisation of opportunities for disabled persons; · to take such steps as is considered appropriate with a view to encouraging good practice in the treatment of disabled persons; and · to keep under review the workings of the Disability Discrimination Act (DDA) 1995.
The DRC has set itself the vision:
"A society where all disabled persons can participate fully as equal citizens"
As part of our strategy to achieve this vision, the DRC has two core expectations for education. By 2014 we want to see:
Objective 1: Increased educational attainment amongst disabled people aged 16-24: a narrower in between disabled and non-disabled people
Objective 2: Disabled people's full participation in school and college life and across the curriculum
2. The extent and nature of the exclusion of disabled people from education - Key facts
· 21% of disabled people aged 16-24 have no qualifications whatsoever, compared to 9% of non-disabled people of the same age - an 11% gap (Labour Force Survey, Autumn 2004) · Disabled young people are 40% as likely to go into higher education aged 18 as non-disabled 18 year olds. (National Audit Office, Widening Access to Higher Education, January 2002) · The Labour Force Survey in 2000/01 found one in twenty disabled people were at a college of further or higher education or university, compared to one in ten of the rest of the population. Although the number of disabled pupils participating in higher education has since increased year on year - the gap has continued to widen as participation by non-disabled people has grown much more rapidly over the same period. (HESA 2004) · Disabled 16 year olds are twice as likely to be out of work, education or training as their non-disabled peers (15% compared to 7%) (DfES, Youth Cohort Study: The Activities and Experiences of 16 Year Olds: England and Wales 2004) · 55% of families with a disabled child are living at or on the margins of poverty (Gordon and Parker 2000). Twenty nine per cent of people with a disabled child in the household live in poverty, compared with 21% of households with no disabled children. (Households below average income DWP 2003) · Over a third (38%) of children questioned in a DRC survey said they'd been bullied, with 1 in 20 saying they'd been bullied by teachers (NOP, Young Disabled People: a survey of the views and experiences of young disabled people in Great Britain DRC, 2002) · 74% of disabled young people interviewed in a survey said they did not feel they were 'active citizens' in their local communities and felt the Government had a limited awareness of their needs and rarely listened to their views (PMSU, Improving the life Chances of Disabled People, 2005) · Data for 2001/02 showed that children with SEN were thirteen times more likely to be permanently excluded than those without SEN. (Removing Barriers to Achievement, DfES 2004)
2.1.1 The DRC funded and won a case in 2003 on behalf of Lee Buniak, a six year old boy, who was excluded from school activities including assembly, singing, computers, numeracy and literacy work and the school play and school photograph. Despite the school being given funding for a full time learning support assistant (LSA), for most of the time he attended the school it failed to appoint a suitable full time support worker. The Tribunal upheld that the school had discriminated against Lee by treating him 'less favourably' because of his disability and that the school failed to adopt a practice of recruiting or retaining support staff for Lee.
2.1.2 PPC v DS and CAS and SENDIST was an appeal to the High Court against a SENDIST DDA decision. The case involved a 17 year old boy attending an independent school, who had be reprimanded by the school for issues relating to his behaviour. Two educational psychologists assessed the boy and they wrote to the school confirming the diagnosis of Asperger's Syndrome, stating that a more detailed report would follow. After receiving the letter, the headteacher contacted the boy's parents and asked them to remove him from the school. The judgement of the court confirmed that schools cannot justify excluding disabled pupils if there were reasonable adjustments that they could have made but did not make.
3. The legislative framework for SEN provision and the effects of the Disability Act 2001, which extended the Disability Discrimination Act to education
3.1 Background 3.1.1 The DRC is uniquely placed to comment on the provisions of the DDA as the statutory body responsible for the legislation and we would encourage the Committee to invite the DRC to give evidence when considering its provisions.3.1.2 From Exclusion to Inclusion: Final Report of the Disability Rights Task Force suggested that the provisions of the Disability Discrimination Act (DDA) should extend to education. The report suggested that "The right to inclusion is not sufficient in itself. Disabled people must have the right to pursue their education without unfair discrimination."3.1.3 It was intended that the existing provisions of the SEN Framework would continue to provide the basis for assistance for disabled children in accessing the curriculum. In addition, though, the Task Force recommended that the legislation should:
· Strengthen the rights of parents of children with statements of SEN to a mainstream placement, unless they want a special school and a mainstream school would not meet the needs of the child or the wishes of either the parent or child.
· Place providers of school education under a statutory duty not to discriminate unfairly against a disabled pupil, for a reason relating to his or her disability, in the provision of education.
· Place providers of school education under a statutory duty to review their policies, practices and procedures and make reasonable adjustments to any that discriminate against disabled pupils for a reason relating to their disability.
· Place providers of school education under a statutory duty to take reasonable steps to provide education using an alternative method, so that the disabled person is no longer at a substantial disadvantage, where a physical feature places an individual disabled pupil at a substantial disadvantage in comparison with pupils who are not disabled.
· Place providers of school education under a statutory duty to plan to increase accessibility for disabled children to schools. This duty should cover both adjustments for physical access, including those for children with sensory impairments, and for access to the curriculum.
· Extend the jurisdiction of the SEN Tribunal to hear cases brought in relation to the new rights.
· Secure comprehensive and enforceable rights for disabled people in further, higher and LEA-secured adult education and include access to services provisions of voluntary organisations providing education, social, cultural and recreational activities and facilities for physical education and training. 3.1.4 The rights conferred by education legislation for pupils to have their special educational needs identified and met, and in England and Wales, the right to appeal to the Special Educational Needs Tribunal, were maintained.3.1.5 These recommendations became legislation under The Special Educational Needs and Disability Act 2001 (SENDA), which amended legislation in Part 4 of the Education Act 1996 (EA) for children with SEN and Part 4 of the Disability Discrimination Act 1995 (DDA) to introduce rights for disabled people in education. In summary, the disability discrimination legislation sets out:
In England, Scotland and Wales:
· a duty not to treat disabled pupils less favourably, without justification, for a reason which relates to their disability; · a duty to make reasonable adjustments so that disabled pupils are not put at a substantial disadvantage compared to pupils who are not disabled (but there is no duty to remove or alter physical features or provide auxiliary aids and services);
In England & Wales only:
· a duty to plan strategically and make progress in increasing accessibility to schools' premises and to the curriculum, and in improving the ways in which written information provided to pupils who are not disabled is provided to disabled pupils.
3.1.6 From September 2002, it has been unlawful for schools to discriminate against a child for a reason related to their disability in: · admissions · education and associated services, such as: school trips, the curriculum, teaching and learning, school sports and the serving of school meals · exclusions
3.2 Definitions
3.2.1 A number of DDA cases taken to the High Court have featured the difference between the definitions of disability and SEN. The difference in definitions of Special Educational Needs and Disability, and the different legislative frameworks in which they operate, have caused some difficulties. The DfES emphasised the role of the DDA in their SEN Strategy Removing Barriers to Achievement, however, in schools the emphasis remains firmly on SEN.
3.2.2 Not all disabled pupils and students have 'learning difficulties' or 'SEN'. Similarly, pupils and students deemed to have learning difficulties or SEN are not all disabled. The DDA has a specific definition of disability, which can be much broader than the definition of 'learning difficulty' within the SEN Framework. Yet policy, regulatory and funding frameworks frequently address the two areas interchangeably because the 'groups' overlap. Understandable though this might be, it is important to recognise that the underpinning theory, direction of legislation, and actions required of providers to comply are significantly different.
3.3 Coverage of the different legislation
3.3.1 The intention of SENDA was for Part 4 of the DDA to sit alongside the SEN Framework and the Planning Duty for schools and local education authorities as a 'jigsaw' of provision. The disability duties for schools under Part 4 of the DDA extend to 'education and associated services' and hence schools have broader responsibility for ensuring access and opportunity for disabled pupils across the whole life of the school. Unlike the DDA provisions in relation to employment and service provision, there is no duty in the pre-16 education provisions for schools to provide auxiliary aids or services or to alter physical features (these being the elements, which are intended to be covered by the SEN Framework and the planning duty).
3.3.2 However, some evidence suggests that the two systems have not been working alongside each other effectively and there are those whose needs are falling between the gap between the DDA duties and the provisions of the SEN Framework. A fundamental problem is the difference between the thinking behind the two systems, with the SEN Framework emphasising 'meeting needs' and the DDA emphasising making reasonable adjustments.
3.3.3 Disabled children who experience discrimination in school only have rights of redress under the DDA where the school treats them less favourably or fails to make an adjustment to policies, practices or procedures that as a consequence place them at a substantial disadvantage. Should a disabled child require auxiliary aids or services, they would need to access SEN provision. Similarly, duties to increase access to the curriculum, adjustments to physical features and accessible information have been developed separately with LEAs under the accessibility planning duties. Although these plans were expected to be in place by April 2003, the Ofsted report Special educational needs and disability: towards inclusive schools found that over half of the schools they surveyed did not have access plans in place. Only four out of ten schools surveyed in the same report had satisfactory planning for improved access to buildings and few had planned access to the curriculum.
3.3.4 Parents and schools can be confused as to which law applies in which circumstances. The DRC Helpline is having to signpost many callers to other sources of advice and support as their enquiries concern the SEN Framework, rather than the provisions of the DDA. In the area of mediation, the DRC's conciliation service can only handle DDA related issues, with LEA mediation services handling SEN cases. It is also difficult to ascertain either from certain SENDIST decisions or some of those reaching appeal where the line is drawn between what is and what is not an auxiliary aid or service (see for example McCauley Catholic High School & CC, PC & SENDIST CO/4281/2003).
3.4 Awareness
3.4.1 Although the various strands of legislation are all aimed at promoting inclusive practice, the relatively recent development of the DDA means that awareness of the DDA duties in schools is low. Many schools and other education providers indicate that they need assistance in fully addressing disability as an equalities issue across all aspects of their provision. Schools have welcomed the possibility of training on both the DDA and disability equality generally. In response to this, the DfES and have been working with the DRC and a number of other agencies to develop a resource for schools on making reasonable adjustments and accessibility planning.
3.5 Difficulties with enforcement - The SENDIST
3.5.1 The Special Educational Needs Tribunal was set up by the Education Act 1993 and was extended to cover both SEN and disability duties appeals by SENDA. It considers parents' appeals against the decisions of Local Education Authorities (LEAs) about a child's special educational needs, where the parents cannot reach agreement with the LEA. However, SENDIST is limited to hearing cases that relate to educational provision.
3.5.2 Between September 2002 and November 2004, the SENDIST had 175 claims brought in relation the DDA. These claims have concerned matters such as refusals to administer medication; exclusions of pupils with emotional and behavioural difficulties (EBD), attention deficit / hyperactivity disorder (ADHD), and similar conditions; failures to properly implement identified provision in a statement of SEN; and refusals to allow disabled pupils to go on school trips.[1]
3.5.3 There have been concerns relating to the level of awareness of the SENDIST (and Independent Admissions and Exclusions Appeals Panels) of Part 4 and the established case law in relation to other provisions of the DDA.
3.5.4 The DRC has difficulty in tracking the case law developments from SENDIST because we do not automatically receive copies of the decisions made, unlike the employment tribunal where there is such a duty. This leaves the DRC dependent upon parents informing us about their individual cases, and leaves us with an incomplete picture of how the system is working and where the case law is evolving. The DRC feel that is would be highly beneficial to have better sharing of knowledge between SENDIST and the DRC (with appropriate safeguards made to ensure the protection of sensitive information).
3.5.5 Furthermore, there is an issue around the responsibility to follow up SEN recommendations. SENDISTs do not have the power to award compensation for breach of the DDA. However, they do have the power to make recommendations as to the schools conduct and to order, for example, an apology. This is a very potent power, but at present, there is no single agency responsible for enforcement or follow up of the recommendations made, such as Ofsted. It is therefore difficult to asses whether the decisions are implemented, although we do know anecdotally that SENDIST finds it difficult to enforce their own decisions or offer advice to parents when a responsible body continues to behave in a discriminatory manner.
3.6 Difficulties with enforcement - Independent Appeal Panels and Admissions Panels
3.6.1 Cases concerning breach of the DDA relating to permanent exclusion from maintained schools are heard by Independent Appeal Panels. It is very difficult to obtain information about how these cases are being dealt with and DRC are concerned that those hearing such cases are not qualified lawyers (SENDIST is chaired by a qualified lawyer). The DRC has similar concerns relating to Admissions Panels.
3.7 Children in Care
3.7.1 There is also a particular issue relating to disabled children in care. The conflict inherent in this system, is where children are in the care of the local authority, the social services department would need to appeal against the LEA if the statement was not in place or not effective - essentially appealing against themselves.
3.7.2 There is growing interest in independent advocacy for young people in care, and all local authorities are expected to have Children's Rights Officers. There have also been some encouraging developments in citizen advocacy for young people. When advocacy works effectively, it can avoid or at least ameliorate the potential conflict of interest between one part of the local authority when it is in dispute with another. However, the merging of education and social care under a common Director of Children's Services, the conflict has the potential to be greater rather than lesser in the immediate future.
3.8 Opportunities to review the legislation
3.8.1 The DRC are currently looking at these issues in the context of a single equality act.
4. Moving to an outcome focussed system of provision
4.1.1 All disabled children and young people, and their parents and supporters should expect high quality of education provision that maximises opportunity and achievement. Any debate concerning the education of disabled children, therefore, must extend beyond simply the relative merits of placing children in 'mainstream' or 'special' schools and instead begin from the point of how our schools can effectively meet the quality of experience and outcomes that disabled children and young people deserve.
4.1.2 The DRC believes that schools have three critical roles in achieving our aims:
· Schools play a fundamental part in defining individuals' life chances through providing children and young people with the opportunity for self-development, reaching their individual potential and successful transition to independent adult life as effective and contributory citizens
· Schools play a vital role in transmitting society's values to children and young people, both through the education they provide and through their own values and ethos
· Schools offer a place and a reason for interaction and engagement between different children and act as hubs of the local communities, and are therefore uniquely placed to help over time to challenge and overcome prejudicial and discriminatory in society
4.1.3 Reaching these aims is determined by two key measures: the quality of experience and the outcomes achieved.
4.1.4 If schools are to fulfil the role as a 'hub of the community' (which incorporates co-location of services as proposed in the NSF, proposals for Children's Centres and extended schools), then they must develop inclusively.
4.1.5 These principles should form part of an overall vision of learning for life. The five objectives of Every Child Matters imply a continuum of educational opportunity from early years provision through to further and higher education. However, conflicting policy priorities can mean that disabled young people are marginalised. For example, recent proposed changes in the funding of further and adult education pose major threats to a range of courses often attended by people with learning disabilities by implying a need to prioritise the attainment of 16-19 year olds. Access to adult education can be a powerful lever for change and optimism and lead to positive outcomes and a greater potential for sustainable employment as opposed to reliance on day service or economic inactivity.
5. Disability Equality Duty
5.1.1 The Disability Discrimination Act 2005 has introduced a duty on all public authorities to promote equality for disabled people. This has a substantial potential to answer many of the problems of inequality that disabled people experience in education, such as lower levels of participation and achievement, bullying, child poverty, social attitudes and expectations. It is therefore vitally important that it is effectively introduced in a way that works for teachers, to tackle some of the inherent barriers within the education system.
5.1.2 The structure of the Duty moves away from an individualistic approach to enforcing rights to a planned approach to removing barriers for disabled people. The Disability Equality Duty will work alongside the provisions of the DDA, and add a new focus on tackling the institutionalised causes of discrimination and identifying the barriers to achievement before they arise.
5.1.3 In carrying out their functions, public authorities must have due regard to the need to:
· eliminate unlawful discrimination; · promote equal opportunities; · eliminate disability related harassment; · promote positive attitudes towards disabled persons; · encourage participation by disabled persons in public life.
5.1.4 To translate this into action, there is a specific duty, which sets out what public authorities should do to plan, deliver and evaluate action to eliminate discrimination and promote equality, and to report on the activity that they undertake. Listed bodies will have to produce a Disability Equality Scheme (DES) to set out what action they will take.
5.1.5 As part of their DES, schools will have to assess the impact of policies and practices that directly or indirectly affect disabled children and young people. Where potential unlawful discrimination is identified, the school will need to show the steps that they plan to take to remove the causes of this potential discrimination. For example, after assessing the impact of their admission and exclusion procedures, a school finds that, potentially unlawfully, disabled pupils are more likely not to be admitted or more likely to be excluded from school. The school will have to analyse the causes of this situation and set out the steps they plan to take to ensure that unlawful discrimination is avoided.
5.1.6 Schools should also seek to involve disabled people in the development of their plans. For example, a school could invite disabled pupils to discuss the barriers that they experience in teaching and assessment as part of the development of a curriculum and achievement strategy. Similarly, their experiences could form part of a school's revision of its anti-bullying policy.
5.1.7 The factors that the DED seeks to promote will require effective measurement and inspection.
6. Provision for SEN pupils in 'mainstream' schools: availability of resources and expertise; different models of provision
6.1 Provision for disabled pupils in mainstream schools
6.1.1 The percentage of pupils with statements of SEN placed in maintained mainstream schools (nursery, primary, secondary) was 60 per cent, which is similar to the previous year. The proportion of pupils placed in independent schools has increased slightly from 3.1 per cent in 2004 to 3.3 per cent in 2005 (DfES National Statistics June 2005)
6.1.2 The inclusion framework continues to have little impact on the proportion of pupils with SEN in mainstream schools or on the range of needs for which mainstream schools cater. (Ofsted 2004)
6.1.3 The literature review by Miller et al (2005) for the DRC on accessible curricula, qualifications and assessment found that the continuing focus on SEN rather than disability[2] was factor in how schools approached teaching and learning for disabled children and how government designs its strategies. The authors found that: "Although the term Special Educational Needs was originally intended as a move away from an over reliance on within-child factors there is still a tendency in many schools to see problems lodging within the child rather than with the provision" (this is often referred to as the 'medical model' of disability).
6.1.4 In his review of the literature on disability discrimination across the 0-19 age range commissioned by the DRC, Gray (2002)[3] noted that in failing to tackle the systemic causes of less favourable treatment, schools are unintentionally discriminating. Gray's findings showed that although there are some reported incidents of extreme prejudice and discrimination towards young disabled people in educational establishments (from both adults and other pupils), most discrimination is subtler and sometimes unintended. In many cases, Gray found that the cause of discrimination was the lack of action taken by schools to make reasonable adjustments or the low expectations of school staff of disabled children.
6.2 Resources and expertise
6.2.1 The availability of expertise in mainstream school varies widely. The 2004 Ofsted report Special educational needs and disability: towards inclusive schools indicates that whilst a few schools are doing very well in realising inclusion, and awareness is growing, a significant proportion of schools are not doing enough to move towards this goal. The report showed that over half the schools were unaware of the reasonable adjustments duty from Part 4 of the DDA. This also extended to other elements of SENDA.
6.2.2 The 'medical model' also pervades culturally amongst school staff, for example, research by Pearson (2005)[4], into trainee teacher attitudes towards disability has shown that a majority of trainees focus on a 'medical model' of disability and within child-factors. In some cases, Pearson found that trainee teachers used exclusionary and offensive language. The DRC have recently launched a project to introduce disability equality training into initial teacher education to try to tackle some of these issues.
6.3 The role of associated service delivery
6.3.1 DRC research has found that role of the LEA is very significant in ensuring that schools meet their duties under the DDA. The Ofsted report Special educational needs and disability: towards inclusive schools found that eight out of ten schools said their LEA and specialist support services were helpful, but that LEAs often only use funding to support the specific requirements of children with a statement. This means that efforts to improve longer-term measures for increasing accessibility are restricted. Of those surveyed for the report, only seven out of 10 LEAs provided at least satisfactory value for money and most did not evaluate the effectiveness of the outcomes of their funding.
6.3.2 In the context of provision for disabled children, significant concerns have been raised by the recent Ofsted report Inclusion: the impact of LEA support and outreach services (2005). The report stated, "The outreach services visited for this survey tended to depend in part on the expertise available at the time rather than on a strategic review of the needs in any one area and how these needs might be met. This lack of strategic planning was common and services available in any one area varied considerably. Different groups of pupils with similar needs received different levels of support depending on where they lived which was unacceptable."
6.3.3 There are potential benefits and disadvantages of government plans to increase the delegation of funding to schools. Access to specialist support in a delegated system can be challenging - and may particularly affect children with low incidence disabilities. Ofsted's report Inclusion: the impact of LEA support and outreach services found that "Support and outreach services promoted inclusion and improved the life chances of many vulnerable people." The report also stated, "The delegation of funding for support services had a negative effect on the provision for some pupils with SEN. It diminished the capacity of many LEAs to monitor the progress of pupils with SEN and reduced the range and quantity of specialist staff available to provide advice and support."
6.3.4 The role of social services is also relevant in the effectiveness of 'mainstream' provision for disabled pupils. The Prime Minister's Strategy Unit report Improving Life Chances of Disabled people (2005) found that "One of the most significant barriers to enabling people to be full citizens is the culture of care and dependency within health and social care structures. Associated with this 'culture of care' is a failure to see expenditure on independent living as a form of social and economic investment. Instead of meeting disabled people's additional requirements to enable them to improve their life chances, resources are used in ways that maintain and create dependency."
6.4 Different models of provision
6.4.1 The DRC support efforts to explore how resources can be re-deployed and effectively delivered in a way that promotes a better quality experience and outcomes for disabled children and that avoids the negative impact of removing some disabled children from their community.
6.4.2 The DRC believe that many of the challenges faced by mainstream schools and by teachers in effectively including disabled children across the curriculum and school life are a consequence of a legacy of disabled children being deliberately separated from their friends and classmates and educated outside of the mainstream education system. This has meant that our education system has developed without consideration to their inclusion.
6.4.3 'Removing Barriers to Achievement' focussed on a number of potential areas for action to improve the capacity of mainstream schools including:
· Proposals on staff training, both with regard to initial training and continuing professional development; · An increased emphasis on outcomes for disabled children and children with SEN; · The need to develop a range of appropriate forms of support for pupils and for their teachers; · Seeing SEN and inclusion as integral to the School Development Plan.
6.4.4 Useful tools for achieving these aims are being developed, such as the (recently revised) Index for Inclusion as well as the DfES resources on accessibility planning and making reasonable adjustments, which are currently being developed. Another key theme within 'Removing Barriers' is that of clusters or communities of schools and breaking down barriers through new partnerships.
7. Provision for SEN pupils in Special Schools
7.1 Background
7.1.1 The above evidence shows why there are specific concerns about the current effectiveness of mainstream schools in working towards the full inclusion of disabled pupils. As a result, disabled children can have a poor quality of experience where the mainstream school is not performing well enough. On this basis, it would be premature and wasteful to abandon high quality resources where they exist in some special schools, and in doing so deny access to such resources. In addition, to the credit of some special schools, recent Ofsted annual reports have noted a gradual improvement in the quality of curriculum delivery and teaching in special schools, though particular problems persist with setting challenging targets for achievement.
7.1.2 However, there are equally a number of concerns about education provision in special schools and the effect this has. The DRC wants to see schools improve the quality of experience and outcomes for disabled children and young people. To do this, certain shortfalls and problems in mainstream provision need to be addressed. It is not sufficient to accept low quality outcomes from mainstream schools as the basis for supporting special schools.
7.1.3 A recent longitudinal research by the Institute of Employment Studies has shown that children at special schools are less likely to have achieved GCSEs or GNVQs than disabled children in mainstream schools. The Audit Commission (2002) also reported that only 4% of SEN children in England in mainstream schools were not entered for any GCSE or GNVQ examination, whilst the equivalent figure for special schools was 61%.
7.1.4 Not all pupils in special schools will be able to gain formal qualifications. However, they can still progress in their education and require equal weight to be given to their achievements, using P Scales and similar measurements that can reflect progress and record it effectively. This is particularly important in respect of the shift in population acknowledged in both the PMSU Report and in the National Service Framework and the importance of person centred planning.
7.1.5 The Prime Minister's Strategy Unit report, Improving the Life Chances of Disabled People pointed out that 'There are particular concerns around labour market inactivity amongst disabled young people. Disabled young people are considerably more likely than non-disabled people to be not in education, employment or training (NEET), particularly from age 19 when many will first transfer out of special school.' As noted above, disabled young people are already twice as likely to be in the NEET group aged 16 as non-disabled young people of the same age are.
7.1.6 Overarching statistics often fail to consider the specific context, and as with mainstream schools, there is a wide variety of quality. The Ofsted report Special educational needs and disability: towards inclusive schools noted that since 2001 there has been a 10% increase in the number of pupils placed at independent special schools by LEAs[5]. At the same time, inspection reports have noted concern about the quality of teaching in independent special schools, which are unsatisfactory in nearly one third of these schools, and notes significant weaknesses in the curriculum in over one third.[6]
7.2 Human rights and 'good relations'
7.2.1 The Prime Minister's Strategy Unit report, Improving the Life Chances of Disabled People noted that, "Many families with disabled children would like to access mainstream services - including early education, play and childcare - with adequate support where needed. This not only benefits many disabled children, enabling them to take part in activities in the same way as their non-disabled peers, but non-disabled children also benefit from growing up in a diverse and inclusive environment.".
7.2.2 Recent research by the charity Stonewall concerning the nature and causes of prejudice against marginalised groups, including disabled people, confirmed the 'contact theory' developed by Professor Miles Hewstone and others in finding that: "overall...personal contact and familiarity with difference are keys which unlock the shackles of prejudice. The research found that places of work and learning were the best environments through which to generate relationships which helped overcome prejudice and discrimination."[7]
7.2.3 The international statement on the future of 'special' education, the Salamanca Statement, set out the international aspirations for 'good relations':
"Inclusive schooling is the most effective means for building solidarity between children with special needs and their peers. Assignment of children to special schools - or special classes or sections within a school on a permanent basis - should be the exception, to be recommended only in those infrequent cases where it is clearly demonstrated that education in regular classrooms is incapable of meeting a child's educational or social needs or when it is required for the welfare of the child or that of other children." (UN 1994)
7.2.4 In her recent pamphlet, Special Educational Needs: a new look, Mary Warnock has argued that placement in a 'mainstream' school might infringe a child's right to personal development, and so could be held in breach of their human rights. However, the European Court has made it clear that article 8 of the Convention on Human Rights includes 'the right to personal development and the right to establish relationships with other human beings and the outside world'. As such, it could be said that placement in a school which separates a child from 'the outside world' is an infringement of article 8.
7.2.5 One of the many examples of where this is relevant is bullying. The prevalence of bullying and the issue of class sizes have both been cited as justification for children being placed in special schools. However, this not only fails to tackle the problem of bullying per se within a school, it also responds in an excessively risk averse way. Non-disabled children experience bullying and can find large class sizes difficult to thrive in, but we do not advocate their removal from mainstream schools.
7.2.6 It is also important to remember that specific groups view separate schools as a more effective route to inclusion, and as a means of maintaining cultural and linguistic identity, such as within the Deaf community.
7.2.7 There are a number of ways in which schools can seek to promote 'good relations'. The DRC launched a Citizenship and Disability resource pack in 2003, to actively engage students in thinking about their role in creating an equal society for disabled people. The pack consisted of lesson plans, alongside 'Talk', the DRC's award winning short film, designed to provide a resource for teachers to champion disability equality in school. 5000 copies of the Citizenship Pack are in schools throughout England and Scotland.
7.2.8 School Councils can also have a strong role in increasing accountability given to pupils in the development and management of their schools. Some School Councils are particularly effective in the support they give to disabled pupils and the steps they have taken to improve access and inclusion. As such, they could play an important role in helping schools meet their duties under DDA 2005 and contribute to the development of Disability Equality Schemes.
7.2.9 The DRC view is that solutions to the challenges faced, are not to be found in the continued segregation of disabled children and children with SEN, but through inclusion and real school improvement.
8. Raising standards of achievement for SEN pupils
8.1 Background
8.1.1 There has been major progress in providing disabled children and young people with more equitable educational opportunities and a steady improvement in educational outcomes, which show a faster annual increase in achievement of GCSE grades A-C and equivalent over the last six years by disabled people than non-disabled people. Similarly, education has played a central role in transforming the wider life chances of disabled people. The DRC want an education system where high expectations of all disabled pupils facilitate a rise in levels of attainment across the sector.
8.1.2 The DRC supports the Government's strategy 'Removing Barriers to Achievement' and the Every Child Matters: change for children programme, which sets out to improve outcomes for all children and to narrow the gap in outcomes. The DRC encourages the Government to implement in full and build upon these strategies.
8.1.3 The Prime Minister's Strategy Unit report, Improving the Life Chances of Disabled People noted that, "The rhetoric of mainstreaming needs to be followed up by specific action to include disabled children." There are already some good examples of where this is working. For example, introducing measures of inclusion into the Ofsted inspection framework has begun to challenge the perverse incentives created by exam league tables for schools to place the education of pupils with special educational needs at the periphery of their core concerns.
8.1.4 Specific action will require a range of shortcomings in the existing system to be tackled in order to ensure that standards are raised for disabled children. The DRC would welcome further discussion with the Committee on these actions. In addition to the successful implementation of existing legislation, the Disability Equality Duty and the suggestions above, further areas for development are:
8.2 Accessible learning environments
8.2.1 There is currently a great deal of investment in schools, through Building Schools for the Future and the development of 'extended schools'. In addition, there is a lot of enthusiasm for breaking down the barriers between schools to ensure that resources, expertise, provision and planning are effectively shared, such as 'federations' or 'families' of schools. All these developments have the potential to improve the accessibility of schools for disabled children, whether in terms of sharing existing expertise or buildings, or building new accessible and adaptable learning environments with a better provision of support. However, they also bring with them a substantial risk if they do not consider disabled children in their development.
8.3 Curriculum
8.3.1 In their research for the DRC, Miller et al (2005) note that "disabled learners are required to demonstrate how they can meet the assessment criteria of qualifications which have not been designed with their needs and skills in mind". QCA have highlighted the failure to tackle the issue in its research on inclusion (2004), which noted with concern that "despite efforts to 'mainstream' there was a perception that SEN had fallen off the agenda in all mainstream high-profile initiatives".
8.3.2 The current curriculum and assessment procedures often create barriers to disabled children and young people. It is unlikely that minor changes to post hoc inclusion policies or access arrangements will be able to achieve the scale of change required. There is a need to take a fresh look at the purpose of curriculum content and delivery and the method by which these are assessed and the qualifications system that supports it, based on a common set of principles to promote equality, maintain academic standards, be adaptable enough to make reasonable adjustments and 'personalise' learning in a way that is practically deliverable.
9. The system of statements of need for SEN pupils ('the statementing process')
9.1 The DRC's remit on this topic
9.1.1 The remit of the DRC does not extend to the provisions of the SEN Framework; however, it is worth highlighting that the DRC are aware of concerns about the quality and consistency of the system of statutory assessment and statements across LEAs.
9.2 Principles
9.2.1 SEN framework is a vitally important source of securing the specific resources and support that disabled children require. Successful delivery of this SEN process framework should be measured in terms of the participation and progress of children with SEN and disabled children in achieving more equal outcomes. This is more than just measuring whether the system is 'meeting needs', it is about promoting full participation and supporting children to reach their potential. There is a need to make schools more demonstrably accountable for all pupils' progress and for parents to feel more confident that their child will be supported appropriately without recourse to formal procedures.
9.2.2 There are concerns that the provision of support under the SEN Framework does not fit well with the reasonable adjustments duty of the DDA. For example, the process of defining support through the production of a statement of special educational needs does not take into account the duty to make reasonable adjustments. This means that there are not always sufficient efforts to remove barriers to promote equal participation before the assessment for support requirements.
9.2.3 It is important that the statementing process is developed in combination with greater awareness about the duty to make the reasonable adjustments. By focusing on removing barriers to participation, this approach could result in greater participation of disabled children and reduce the demands on the statementing process.
9.3 Coverage
9.3.1 The structure of the statutory assessment process does not sufficiently cover non-educational provision (eg equipment or therapy) or provision that does not fall within the scope of the SEN Framework, but is required by a young person who may be disabled but who is not identified as having SEN. As a result, residential or other special education is sought because of a lack of non-educational provision, which may be more readily available in a specialist setting.
9.3.2 Currently, families whose children who do not have SEN may be forced down the statutory assessment route in order to get a single piece of equipment. This results in a time consuming and unnecessary formal assessment procedure may actually cost more than the specific equipment or other reasonable adjustment required by the child. The National Service Framework points to a system of Community Equipment Services and the role of Children's Trusts in providing this support, provided either through joint commissioning and pooling of budgets or through the NHS directly rather than through schools.
10. The role of parents in decisions about their children's education
10.1.1 The Special Educational Needs and Disability Act (SENDA) 2001 created new rights for disabled children and their parents. It changed the inclusion duty by requiring Local Education Authorities to place all children whose parents wanted it in a mainstream school, unless it was incompatible with efficient education for other children.
10.1.2 The DRC supports the presumption contained within SENDA that a mainstream placement should remain the preference for all children unless it is against the parents or child's wishes or the effective education of other children. The decision to place a child in a special school should always be made in this context.
10.1.3 However, the DRC feel that the expression of preference of educational setting made by a parent of a disabled child needs to be a meaningful one. Parents of disabled children experience understandable anxieties in expressing a preference and often find the language of SEN and disability in education bewildering[8]. Meaningful choice requires the provision of effective advice, guidance and advocacy to ensure that the most appropriate decision can be made and a choice from a wide range of schools.
11. How special educational needs are defined
11.1.1 The system of identifying Special Educational Needs should be limited to the process of identifying barriers learning and defining the provision of support required to enable equal access to learning. In keeping with the intent of the Disability Equality Duty, the overarching paradigm should be one of equality. In meeting the needs of disabled learners, schools should primarily focus on removing barriers and making systemic changes to ensure equality of opportunity in education.
12. Provision for different types and levels of SEN, including emotional, behavioural and social difficulties (EBSD)
12.1.1 The 'social model' of disability is based on an understanding that functional limitations arising from disabled people's impairments do not inevitably restrict their ability to participate fully in society. Rather than the limitations of an impairment, it is often environmental factors (such as the structure of a building, or an organisation's practices) which unnecessarily lead to these social restrictions. Therefore, it is as important to consider which aspects of an organisation or body's activities create difficulties for a disabled person, as it is to understand the particular nature of an individual's disability. Disabled children are a diverse group, who will have vastly different educational experiences mostly in relation to the quality of their educational experiences and the opportunities available to them.
12.1.2 Following the 'social model' above, categories of impairment/condition should not be used to presume what provision is most appropriate, and such practice may in fact be discriminatory. Each child should have an equal right to an individual assessment of their needs developed in partnership with the child and their parents to consider how of the barriers in the learning environment can be removed. [1] Douglas Silas and David Wolfe Four years in the life of the Special Educational Needs and Disability Act 2001 [2] See section 8 of this submission for details on the difference between SEN and disability [3] Gray, P. (2002) Disability Discrimination in Education: a review of the literature on discrimination across the 0-19 age range [4] Pearson, C (2005) 'SEN - a politically correct phrase to replace terms such as disabled? A study of the views of students entering a secondary PGCE course' Support for Learning Vol 20 Number 1 [5] There are 6,224 pupils are boarders at maintained and non-maintained special schools and a further 2,766 board at approved independent special schools. Removing Barriers to achievement DfES (2004). Over the last five years the proportion of pupils with statements place in special schools (both maintained and non-maintained) has increased by almost one percentage point (DfES National Statistics June 2005) [6] Ofsted Annual report 2001/02 - Special Schools http://www.ofsted.gov.uk/publications/index.cfm?fuseaction=pubs.summary&id=3151 [7] Profiles into Prejudice, Stonewall (2004) [8] Lewis, A et al (June 2005) Experiences of disabled students and their families: Phase 1, DRC
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