Education Bill

Memorandum submitted by Mencap (E 26)

Mencap’s Briefing For Members of the Education Bill Committee.

About Mencap - Mencap supports the 1.5 million people with a learning disability in the UK and their families and carers. Mencap fights to change laws and improve services and access to education, employment and leisure facilities, supporting thousands of people with a learning disability to live their lives the way they want.

We are also one of the largest providers of services, information and advice for people with a learning disability across England, Northern Ireland and Wales. See for more information.

About learning disability - A learning disability is caused by the way the brain develops before, during or shortly after birth. It is always lifelong and affects someone's intellectual and social development. It used to be called mental handicap but this term is outdated and offensive. Learning disability is NOT a mental illness. The term learning difficulty is often incorrectly used interchangeably with learning disability.

Introduction -
Mencap recognise the proposals laid forth within the 2011 Education Bill are the foundations of a wider agenda to reform the education system.

However, Mencap believes that the Bill could be more explicit in setting out the importance of upholding the rights of children. As an organisation that campaigns for and protecting the rights of children with a learning disability, Mencap are concerned that the vulnerability of this group of children could be put at further risk as a consequence of this Bill. Mencap would urge the government to consider in more detail the direct and indirect consequences of the proposed reforms upon children with a learning disability and seeks assurances that new initiatives, such as policies around exclusion, will not discriminate against them.

Despite the government’s commitment to close the attainment gap between children with Special Educational Needs and those without, Mencap remains concerned that as an unintended consequence some of the measures laid out in the Bill will not achieve this aim. It is vitally important that children with special educational needs are expected to achieve their educational potential within the mainstream environment and have the support they need to succeed on an equal level to their non-disabled peers.

While some aspects of the Bill aim to hand power to teachers, the re-centralisation of certain duties that redirect away from schools and place them with the Secretary of State could be detrimental to the accountability of schools to children and their parents. This can only serve to increase the bureaucracy and the adversarial nature of the SEN process, which the call for views on SEN and disability stated that the SEND Green Paper would seek to improve.

Key Facts - In 2006 210,510 children were identified by their schools as having a Learning Difficulty being identified as their primary Special Educational Need. [1] If learning difficultly as a secondary SEN were included, this number would increase to an estimated 236,000 (2.9% of school aged pupils). [2]

The gap in attainment between children with SEN and with out SEN remains wide. The 2010 children with SEN analysis, report the following expected levels of attainment in English and Maths at Key stage 2:

· Non SEN = 86%

· SEN associated with Moderate learning disability = 11%

· SEN associated with Severe Learning Disability = 2%

· There are no statistics for pupils with Profound and Multiple Learning Disabilities (PMLD).

In the year 2009/2009, 72% of permanent exclusions from schools were for children with Special Educational Needs. [3]

In the 2009 Tell Us survey, 61.4% of children with a learning difficulty said they had been bullied in comparison with 48% of children without a learning difficulty. [4]

Nationally, young people with a learning difficulty or disability (LDD) are three times more likely to be NEET (Not In Employment, Education or Training) than their non-disabled peers. [5]

Admissions and Exclusions - Mencap is concerned about the relaxing of duties on schools regarding the admissions and exclusion process in relation to children with a learning disability. We are concerned that these proposals have not taken sufficient regard of the needs of children with a learning disability and the consequences these proposals may have on their academic participation. There is a weakening of both parental involvement and the right to appeal without any replacement provisions to ensure a child’s right to education is upheld. It is the following clauses that Mencap is most concerned about as they risk further exposing disabled children and placing their parents to increased vulnerability.

Clause 34 – Removal of requirements for local authorities to establish admission forums

As an objective of the government is to increase the local accountability of parents, this appears to be undermined by the proposal to remove the existing provision that enable parents to express their views and raise their objections to school decisions. The Special Educational Consortium (SEC), to which Mencap endorse their respective contribution to this Bill, argues that "schools must be held to account for their admissions policies and the way they operate these policies in practice. The parents of disabled children and children with SEN may have little capacity to hold schools to account for their admission arrangements".

Furthermore, the additional pressures, costing and effort required to parent a disabled child increases the vulnerability of not having their views heard. As is recognised in the Ministry of Justice reforms to legal aid consultation, parents of disabled children are more likely to be disabled themselves. T he additional caring role of parents of children with a disability leave s them time poor, limiting their availability and energy to dispute admission decisions where they feel that their child has been discriminated against because of their special educational needs.

Mencap believes that schools must be held to account for their admissions policies and the way they operate these policies in practice. The parents of disabled children and children with SEN may have little capacity to hold schools to account for their admission arrangements.

Proposed Amendment

34 Duties in relation to school admissions

(4) In section 88P (reports by local authorities)-

(a) in subsection (1)-

(i) omit "to the adjudicator";

(ii) for "prescribed" substitute "required by the code for school


(b) omit subsections (4) and (5);

(c) in the heading, omit "to adjudicator".

(d) the S ecretary of S tate has the power to inspect a schools admissions code to ensure that it complies with their duties under the E quality A ct

(5) Each school must produce and publicise a complaints procedure detailing parental rights to appeal against an admissions decision.

37 Constitution of governing bodies: maintained schools in England

(2) After subsection (1) insert-

"(1A) Regulations must provide for a governing body of a maintained school in England to consist of-

(a) persons elected or appointed as parent governors,

(b) the head teacher of the school,

(c) in the case of a foundation school, a foundation special school or a voluntary school, persons appointed as foundation governors or partnership governors, and

(d) a local authority representative or governor

(e) a student representative in attendance at the school

(g) such other persons as may be prescribed."

Clause 4 – Review panels will be able to compel governing bodies to reconsider their decisions but not to re-instate

The exclusion of pupils with a learning disability remains disproportionately high compared to non-disabled children. Pupils with SEN (both with and without statements) are over 8 times more likely to be permanently excluded than those pupils with no SEN. In 2008/09, 24 in every 10,000 pupils with statements of SEN and 30 in every 10,000 pupils with SEN without statements were permanently excluded from school. This compares with 3 in every 10,000 pupils with no SEN. [6]

For children with a learning disability, the inadequate identification of a pupil’s support needs results in children not receiving the support they require to access an equal education. This can lead to children becoming frustrated with the lack of appropriate provision and a potential misunderstanding of their conduct in the setting. Moreover, many children with a learning disability will also have a speech, language and communication issue, this increases the risk of exclusion through poor interaction between staff and pupils. This is compounded by the fact there is often a disjointed relationship between a child’s home and school life that is detrimental to their interests. This can be due to poor communication of knowledge regarding the child’s needs and progress which leads to a breakdown of adequate, appropriate support and subsequent behavioural issues.

Proposals in the Education Bill to take away the power of governing bodies to order the re-instatement of excluded children could further aggravate the risk of discriminatory practices of schools to remove those children they consider as challenging to teach. As SEC have stated, this proposal means that "parents and children will have no right to re-instatement except through the courts. SEC does not believe that these proposals meet the requirements of justice. It should not be left to parents to take schools to court in order to get an appropriate remedy."

Mencap believes that the proposed exclusion policy could result in schools inappropriately using their power to remove pupils from their schools who they believe are too difficult to teach. While we recognise that governing bodies can instruct school funding budgets to provide alternate provision to excluded pupils, we are concerned that the Pupil Referral Units (PRUs) – suggested as an alternative – may not be equipped to provide the quality of education that children with a learning difficulty need or deserve. The financial cost of the PRUs may provide a perverse incentive to schools who balance the cost against the prospect of long term education provision within their own school.

Mencap is concerned that mainstream education providers may not have the skills, resources or confidence to provide appropriate support for children with a learning disability who have challenging behaviour. Therefore the option to exclude a pupil in the knowledge that they will not be compelled to reinstate that child could result in an increased number of expulsions.

Proposed amendment:

4 Exclusion of pupils from schools in England: review

(2) Before section 52, insert-

"51A Exclusion of pupils: England

(1) The head teacher of a maintained school in England may exclude a pupil from the school for a fixed period or permanently.

(2) The teacher in charge of a pupil referral unit in England may exclude a pupil from the unit for a fixed period or permanently.

(3) Where a child’s SEN has association to behavioural needs, a school cannot exclude a pupil without demonstrating the attempts made to support their needs.

(4) On an application by virtue of subsection (3)(c), the review panel may-

(a) uphold the decision of the responsible body,

(b) recommend that the responsible body reconsiders the matter, or

(c) if it considers that the decision of the responsible body was flawed when considered in the light of the principles applicable on an application for judicial review, quash the decision of the responsible body and direct the responsible body to reconsider the matter.

(d) Where a child has a Special Educational Need or disability, the school must demonstrate that it has adequately followed the SEN framework before disciplinary action is taken.

(e) Where the Independent Review Panel identifies that a school has discriminated against a pupil under the Equality Act 2010 during their exclusion, the IRP can instruct the school to re-instate.

Teacher Training

Clause 34 absorbing the Teaching Development Agency (TDA) into the Department for Education.

The current teacher training program provides inadequate provision in special educational needs. It is thought that on a typical teacher training course the voluntary module of SEN is only provided for less than 1 day’s training. Mencap are concerned that the proposed changes to the teacher development agency will decrease or will not improve the training provision in SEN. An OFSTED review of teacher training suggests that: "In two thirds of the lessons taught by new and recently qualified teachers, provision for pupils with learning difficulties and/or disabilities was satisfactory or worse. Where it was most effective, teachers had been given a firm grounding in pedagogy relating to teaching pupils with learning difficulties."

The proposals in the Bill to give outstanding schools the responsibility for providing and quality assuring initial teacher training does not increase confidence that future training provisions will adequately include specific SEN modules. SEC believes that: "It is difficult to envisage how individual training schools can be expected to have the necessary depth and breadth of knowledge on SEN, particularly low-incidence SEN. Teaching schools will need experience and expertise in making provision in a range of settings: mainstream schools, specialist units, as well as special schools". There could be the opportunity for special schools that are considered outstanding to become training hubs in SEN provision. This would increase the participation of special schools in the generic development of strategic planning of their local communities, and to enable mainstream teachers to up-skill their abilities in providing support to children in their setting.

The training of teaching staff with the specific abilities to provide adequate education to children with more complex disabilities is critically required. Toby Salts’ review of education for children with Severe Learning Disabilities and Profound and Multiple Learning Disabilities suggests that "45% of head teachers and teaching staff in special schools are aged 50 or older, compared to 27% in mainstream schools". This could result in a negative situation where there are not enough teachers with the suitable skills to provide the right type of education for this group of children. Salt further argues that without adequate training, staff are providing more of a caring role than as educators, thus denying children with an equal opportunity to learn.

Transferring responsibilities regarding the quality assurance of teacher training from the TDA to local schools risks diminishing the priority of SEN provision even further. Also, from the teacher's perspective, if as suggested the Qualified Teacher Status will take account of SEN training, Newly Qualified Teachers must have the opportunity to equip themselves with the adequate skills to teach children with a learning disability.

Proposed amendments

17 Abolition of the TDA: transfer schemes

Schedule 5 (schemes for the transfer of staff, property, rights and liabilities

from the Training and Development Agency for Schools to the Secretary of

State) has effect.

The Secretary of State will monitor the teacher training provided by lead schools to ensure training includes at least twenty hours in Special Education Needs.

Co-ordination - Clause 30 – Removal of the duty on schools and colleges to co-ordinate with Children’s Trusts

The co-ordination of services for children with a learning disability is an approach which the Special Education sector has been calling for a number of years. The advantages that co-ordinated support has for both children with a learning disability and their families are well evidenced. Co-ordinated support is a holistic approach that ensures disabled children and their families are at the centre of those services aimed at improving their access to an ordinary life. Mencap believes that removing the duty on schools to co-operate with external agencies, could break a vital link in the co-ordination of service for children with a learning disability.

When the Department for Education's own publication, the SEN and the lives of disabled children Green Paper call for views, it stated that "public services [should be] centred on the needs of the family and child in the round, joining up support from education, social care and health, particularly for those with the most severe and complex needs and at key transitions", Mencap is concerned this statement is not consistent with the proposal in the Education Bill to remove the duty to ensure that joined-working happens. The counter argument that without the duty, schools will take a co-ordinated approach in the interests of children suggests a misunderstanding of the reasoning behind introducing such a duty in the first place. The non-identification of children’s needs was directly caused by services not sharing information or recognising the impact of the range of circumstances in their lives. The preference of agencies, including education, to work in silos led to a situation where the needs of families were going unsupported, leading to damaging consequences, which at worst have led to the death of vulnerable children.

Even on a micro scale within a school setting the Lamb inquiry "reveals that, in the majority of cases, there is a lack of co-ordination between teachers and support assistants. This means there is less linkage into the curriculum and to the assessment of progress." It is our concern that the freedoms being given to schools in regard to co-operation could have a detrimental impact on the lives and life chances of disabled children. The government appears to be basing this proposal on the assumption that schools will co-operate without the duty. Even where schools have the good intention to co-operate, with decreased budgets and less of an incentive to do so, there is a risk that schools will be less inclined to work with other services in the child's best interests.

Mencap would urge government to uphold the "two of the key intentions of the changes [which] were to broaden the nature of the needs covered by the statutory definition and to improve the co-ordination of support to children who need support from more than one agency." While we are doubtful that the government will amend the reforms under the Education Bill, the co-ordination Mencap view as a vital duty upon local authorities could be achieved through ensuring that Health and Well being Boards have an education representative who can advocate for the holistic planning of local strategy to benefit all needs of disabled children.

Proposed amendments

30 Duties to co-operate with local authority

(1) Section 10 of the Children Act 2004 (children’s services in England: cooperation

to improve well-being) is amended as follows.

(2) In subsection (4) (persons and bodies under duty to co-operate with local authority), omit paragraphs (fa) to (fd) (governing bodies and proprietors of schools and FE institutions).

(3) Omit subsection (10).

(4) In subsection (11), omit the definitions of "governing body", "institution within

the further education sector", "maintained school" and "proprietor".

(5) Where a child has a Special Educational Need, a school must demonstrate co-operation with other agencies to ensure the child’s needs are supported holistically.

(6) A representative from the top tier Local Authority must be included on the Health and Well-being Board.

February 2011

[1] From CeDR, People with Learning Disabilities in England, Eric Emerson and Chris Hatton, May 2008.

[2] As above – see footnote pg 2 of report regarding extrapolation of data.


[4] Children with special educational needs 2009 an analysis - DCSF

[5] (2009)