Children and Families Bill

Memorandum submitted by the Alliance for Inclusive Education  (ALLFIE) (CF 109)

The Children and Families Bill (CFB) states that children and young people with SEN must be educated in a mainstream school or college. This is because the Bill keeps the "presumption of mainstream education" for children and young people with special educational needs (SEN). It follows then that any accompanying guidance and code of practice should place emphasis on all agencies working together to promote and implement inclusive education practice.

It is the Government’s proposal to replace the existing SEN Code of Practice (SENCoP) with a new Code that reflects the Children and Families Bill SEN provisions. ALLFIE understands that the proposed SEN Code of Practice for children and young people aged from 0-25 years of age will replace the current Special Educational Needs Code of Practice for school pupils up to the age of 18 and the Inclusive Schooling statutory guidance. The 32 page Inclusive Schooling statutory guidance has been a particular useful guide for emphasising and promoting good inclusive education practice in schools. The Inclusive Schooling statutory guidance makes it clear that both schools and Local Authorities (LAs) must:

· adopt an inclusive ethos,

· provide a broad and balanced curriculum for all pupils

· have systems in place for early identification of barriers to learning and participation of all pupils

· High expectations and suitable targets for all children.

The new SEN Code of Practice – indicative text

ALLFIE has now had the opportunity to read through the proposed SEN Code of Practice. Whilst we appreciate that the SENCoP is a working document, nevertheless, we are deeply concerned that all the useful guidance on inclusive education practice has been omitted from the draft SENCoP presented to the CFB Scrutiny committee. ALLFIE is also very concerned that the SENCoP indicative text does not reflect the spirit of the UN Convention for Persons with Disabilities Article 24 (Inclusive Education) and the Public Bodies Public Sector Equality duties. In fact the SENCoP indicative text gives specific advice which is not in the spirit of the Equality Act duties for education providers:

"FE colleges manage their own admissions policies. They will do so in line with the requirements of the Equalities Act. Students will need to meet the entry requirements for courses as set out by the college, but should not be refused access to opportunities based solely on whether or not they have SEN."

This guidance suggests that students will need to meet the entry requirements for courses which could be taken to mean that neither schools nor colleges are expected to make reasonable adjustments for disabled students – this clearly undermines their Equality Act duties.

ALLFIE has identified the following areas in the SENCoP indicative draft that we are particularly concerned about:

· Withdrawal of the inclusion principle

· Sole focus on reasonable adjustments for individual students

· Withdrawal of the ‘incompatibility of efficient education of other pupils’ guidance

ALLFIE is calling for the SENCoP indicative text to be reconsidered, as its content does not reflect the Government’s obligations under Article 24 of the UN Convention for Persons with Disabilities to ‘build the capacity of mainstream’, the education providers’ public sector equality duties or the ‘presumption of mainstream’ set out in the Children & Families Bill.

Withdrawal of the inclusion principle

The current Inclusive Schooling statutory guidance highlights the expectation that on a strategic level, schools and college should develop their cultures, values, policies and practices to be inclusive of children and young people with SEN. The statutory guidance recognises the importance for mainstream schools and LAs to have a commitment to increase the inclusion of a wider range of children and young people with SEN. The ultimate goal of inclusion is that everyone, regardless of impairment, background and ability will be welcomed and be catered for in local mainstream schools. The inclusive approach promotes ‘aspiration’ and a culture of ‘thinking outside the box’ when considering how different areas of school and college life need to adapt to enable everyone, including disabled children and young people, to participate and contribute to their learning communities. The Inclusive Schooling guidance supports the Equality Act public sector equality duty on education providers and service providers to advance the equality of opportunity and promote good relations between disabled and non-disabled students at a strategic level. Ofsted, in its 2006 report on Inclusion highlighted how the adoption of an inclusive approach benefits both disabled and non-disabled people:

"Mainstream schools with additionally resourced provision are particularly successful in achieving high outcomes for pupils academically, socially and personally. In the best example, resourced mainstream provision was used as a vehicle for improvement throughout the school." OFSTED [1]

The Inclusive Schooling statutory guidance makes it clear what the roles and responsibilities are for LAs and Schools, in terms of developing inclusive education practice. The guidance also includes helpful examples of what reasonable steps can be taken to include children and young people in their schools. . Apart from making reasonable steps, LAs are expected to develop and build the capacity of mainstream schools to become more inclusive of pupils with a range of SEN, by providing training and additional resources as appropriate. The Inclusive Schooling statutory guidance is much clearly about what is required than the Equality Act 2010 ‘reasonable adjustments’, as it focuses on whole institution culture and policies, rather than individual ‘reasonable adjustments’ cases.

Focus on reasonable adjustments for individual students

The need for schools to adopt an inclusive ethos has been removed from the indicative SENCoP. In the Indicative draft of the revised SENCoP, schools, colleges and local authorities (LAs) are, in the main, only required to consider children and young people with SEN in relation to accommodations under the Equality Act 2010 reasonable adjustments duties. Traditionally ‘reasonable adjustment’ approaches have sometimes limited the potential for schools and LAs to think strategically as the focus is on the individual changes required rather than giving consideration to the impact upon the education institution’s culture and practice upon disabled people.

Simply focusing on ‘reasonable’ adjustments without the broader aspiration for the development of inclusive proactice encourages some education institutions to take a minimal checklist approach to how support for individual children and young people with SEN should be arranged. A major limitation of using reasonable adjustments in isolation of inclusion is that support arrangements such as purchasing a specific piece of equipment, arranging assistance or differentiating the curriculum is viewed, by education providers, as being of benefit to individual disabled students, rather than the learning community as a whole.

For example: Lesley is a young person with learning difficulties enrolled onto a NVQ level 1 Performing Arts course at a college that does not have an inclusive education policy. However the college does have a reasonable adjustments policy.

Lesley needs to film the dance performances so that s/he can review the performance and thereafter improve dance techniques. Filming has to be considered as a reasonable adjustment to the college’s normal cultural norms of learning ethos. The college decides that reasonable adjustments could not be made. However if visual learning is part of an inclusive learning policy then filming or any other visual medium that students need to use to aid their learning would not be subjected to the ‘reasonable’ adjustment test.

When students learn using different media from the norm, then this and other colleges will only consider whether the adjustment is reasonable for individual students on a case-by-case which ultimately involves extra costs in the long-term and an inconsistency of approach to providing support to disabled students. However, different colleges may consider filming as a reasonable adjustment or step that can be taken to include the student with SEN in their performing arts course. So what is or is not considered as ‘reasonable’ will vary between different educational institutions as illustrated by Jo’s case below:

Jo has significant learning difficulties and has a full statement. Ordinarily Jo would have made an automatic transition from a state funded mainstream nursery to mainstream primary school. However, in June 2012, Jo’s family moved to a London borough where they wanted a mainstream school placement for their daughter. Jo’s mother contacted the local authority (LA) about mainstream school placements for Jo. She was told by the LA that ‘This is the school you should go and look at; this is the school that will be able to meet your child’s needs.’

What SEN support or adjustments are considered as ‘reasonable’ will vary between different educational institutions depending on how they use their resources and their overall commitment to inclusion. ALLFIE have witnessed time and time again, LAs and schools and colleges stating that particular adjustments are considered as ‘unreasonable’ as a reason to justify segregated education placements for children and young people with SEN. It is completely unacceptable that there is such inconsistency in the assessment of what is reasonable and what is unreasonable. It is also completely unacceptable that the chances for children and young people with SEN of being included in mainstream with the right levels of support are based on a post code lottery of reasonableness definitions.

If education institutions were provided with statutory guidance stating that they must develop an inclusive ethos, then what adjustments are considered as ‘reasonable’ will become less of an issue as they would be incorporated into the range of provision needed to meet the needs of the learning community as a whole.

Local Authorities (LA) and Schools guidance on how ‘incompatible with the efficient education of other pupils’ should be considered

When schools and LAs want to refuse a mainstream educational placement for a child or young person with SEND, the Inclusive Schooling guidance provides information on what should or should not be considered.

Inclusive Schooling statutory guidance makes it clear about how ‘incompatibility with the efficient education of other pupils’ should be interpreted by LAs when considering the appropriateness of placing children and young people with SEN into mainstream schools. The expectation is that children with ‘significant and challenging behaviour’ labels placement should be considered when LAs are determining whether or not their mainstream placement will affect the efficient education of other pupils.

The SENCOP indicative draft provides no guidance on how schools, colleges and LAs should interpret the ‘inefficient education of other pupils’ caveat (under CFB clauses 33 and 34) when refusing a mainstream placement for a child or young person with SEN. Without statutory guidance schools, colleges and LAs will have to decide for themselves both what types of pupils and students they are prepared to admit and what kind of SEN support might impact on the efficient education of other pupils.

ALLFIE is very concerned that with increasing pressure on budgets, resources and the drive to meet floor qualifications targets, education providers and LAs are more likely to mis-use the ‘incompatibility with the efficient education of other pupils’ caveat even more than they do now to prevent the admission of a child or student with SEN to a mainstream school or college. Below is a current example:

Mossbourne Academy in London refused to admit an 11 year old boy with cerebral palsy (with an SEN statement), who simply required a bit of support during break times to make sure he was safe when moving about in the school. He needed no additional support. The school refused to offer him a place on the grounds that his admission "would be incompatible with the efficient education of other children in the school" [2] .

This demonstrates how clauses 33 and 34 of the Children and Families Bill and associated caveats are open both to misinterpretation and to abuse.

ALLFIE anticipates that the number of schools, colleges and LAs using ‘incompatibility of efficient education’ caveat to deny admission to SEN and disabled students will also increase as a consequence of Government’s ‘standards’ agenda. Justifications will include: disruption due to differentiation of curriculum, disruptive behaviour from pupils with SEN, neither of which would be permissible under the existing Inclusive Schooling Statutory Guidance. When such cases come before SEN tribunals, it will be for the tribunal panel to consider what is deemed to be ‘incompatible with the efficient education of other pupils’ in absence of statutory guidance. This will lead to increasing numbers of tribunal cases being sent to the Court of Appeal in order to get definitive guidance on how ‘incompatibility with the efficient education of other pupils’ should be interpreted. To avoid expensive legal appeals, revised SENCoP must reinstate the advice and guidance to education providers, and Las about developing an inclusive ethos and practice.

ALLFIE wants the revised SENCOP to reflect a broad, inclusive approach to accommodate children and young people’s SEN in mainstream schools and colleges. This would ensure that the Government isn’t in breach of its UN Convention for Persons with Disabilities Article 24 obligations, Public Bodies Public Sector Equality Duties and the CFB’s clauses 33 and 34 ‘presumption for mainstream’ principle.

April 2013


[1] OFSTED (2006) “Inclusion Does It Matter Where Pupils Are Taught”

[2] Mawell & Gillott (2012) L atest News - May 2012 Major problems for children with special needs wanting places in Academies http://www.maxwellgillott.com/news-may2012-sen-academies.htm

Prepared 26th April 2013