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BRITISH COUNCIL OF DISABLED PEOPLE'S RESPONSE TO THE EDUCATION AND SKILLS SELECT COMMITTEE ON CHILDREN WITH SEN
SUBMISSION 3RD October 2005
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 loose 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 3 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 lengthily 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.
Simone Aspis (Parliamentary and Campaigns Development Worker) Tel. No 0208-459-2998 E-Mail Address simone@disabilityissues.freeserve.co.uk
[1] 2020 Campaign To End Segregated Education [2] Alliance for Inclusive Submission [3] Disability Equality Into Education Submission [4] Inclusion and Pupil Achievement DfES RR578 2004 [5] Rustemier S, "The Case Against Segregation Into Special Schools - A Look At the Evidence.", 2003 [6] [2004] [7] Brandon S, "The Invisible Wall - Niki's Fight To Be Included", Parents With Attitude, 1997 [8] IPSEA case work and recent campaign pledges [9] Refusal to undertake a statutory assessment, refusal to issue statement and thereafter contents of the statement. [10] Slough BC v Mr and Mrs C 2004 [11] Levenes Law Firm has and still deals with judicial review cases involving non implementation of tribunal orders for mainstream school provisions. [12] 2002 |