Children and Families Bill

Supplementary evidence submitted by Equality and Human Rights Commission (CF 67)

Children and Families Bill 2012-13

House of Commons, committee stage


March 2013

Part 3: Children and young people in England with special educational needs


The Commission has issued a separate briefing on:

· Part 6: statutory rights to leave and pay, part 7: time off work: ante-natal care etc, part 8: right to request flexible working

It is available from our website at:

Part 3: Children and young people in England with special educational needs 



Part 3 of the Children and Families Bill 2012-13 introduces provisions to:

· reform the statutory framework for identifying children and young people with special educational needs, assessing their needs and making provision for them;

· require local authorities to keep local provision under review, to co-operate with their partners to plan and commission provision and publish clear information on services available;

· replace statements with new Education, Health and Care Plans;

· set out in regulations the detailed requirements of particular provisions; and

develop a new statutory Code of Practice to provide guidance on the new framework for special educational needs, which requires the approval of Parliament.

The Commission’s analysis 


The Equality and Human Rights Commission (the Commission) has analy s ed the above proposals in light of the requirements of the Equality Act 2010 and the Human Rights Act 1998 . We have also assessed compliance with the obligations under the UN Convention on the Rights of Persons with Disabilities (UNCRPD), and in particular, the article 24 requirement that the education system is directed to the development by persons with disabilities ‘of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential.’ [1] This is in line with our responsibilities as an National Human Rights Institution and our treaty monitoring powers.

In summary, the Commission's analysis is that the following aims of this bill are in accordance with the requirements of the Equality Act 2010, the Human Rights Act 1998 and UNCRPD:

· the overall aims of the Children and Families Bill to reform Special Educational Needs (SEN);

· the intention to place children, young people and families at the centre of decision making, enable them to participate in a fully informed way, and with a focus on achieving the best possible outcomes; and

· the improvement in provision from the draft clauses, in particular the development of a statutory Code of Practice to provide guidance on the new framework for special educational needs, for the approval of Parliament .

The Commission is responsible for monitoring compliance with equality and human rights enactments. Our analysis suggests this bill provides an opportunity to strengthen compliance with the Equality Act 2010 in relation to duties on education providers to make reasonable adjustments for children with disabilities, and to set out how the new SEN arrangements and the Equality Act 2010 requirements can work together to make educational provision for disabled children fit for purpose, and in line with the requirements of the UNCPRD. This is explained further below.

In this respect, the Commission’s analysis supports the provision in the bill that furthers these aims by placing a duty on governing bodies of maintained schools and proprietors of Academies to prepare an information report on SEN and disability provision to include: arrangements both for the SEN policy and for the admission of disabled pupils; the steps taken to prevent less favourable treatment of disabled pupils; the facilities provided to assist access to the school by disabled pupils; and the accessibility plan which schools must publish under the Equality Act 2010.

However, the Commission finds that if implemented the proposals may lead to regression from the provisions already in place for disabled young people and young people with SEN. Under the bill, statements of SEN (SSEN) are to be replaced by new Education, Health and Care (EHC) Plans . T here is lack of certainty in the b ill , however, on provision for young people without an EHC plan , who currently receive support under School Action or School Action P lus.

The SEN process currently operates separately from the reasonable adjustments, auxiliary aids and services requirements placed on schools by the Equality Act 2010. Duties in the Equality Act apply to all schools, and confer a specific set of rights on disabled children and obligations on schools. Estimates of the proportion of children with a disability vary, with research indicating that around 6 to 7 per cent of children are disabled [2] .

The duty to make reasonable adjustments for disabled pupils is extremely important and has the advantage of being enforceable. It is nevertheless subject to the qualification of what is 'reasonable' and was not intended in policy terms to be a substitute for support for learning needs provided through School Action or School Action Plus.

T here is a significant overlap between disabled children and those with SEN . R esearch suggests that around three-quarters of disabled children also have SEN and will be receiving support through the SEN system , either by being statemented or receiving support through School Action or School Action Plus .

According to the D epartment for Education Green Paper, Support and As piration, i n January 20 10 21 % of the school population were identified as having SEN:

· 11.4 % receiving School Action provision , approximately 916,000 pupils;

· 6.2 % receiving School Action Plus provision , approximately 496,000 pupils; and

· 2.7 % of the school population or 221,000 pupils had a statement of SEN .

Under current proposals to replace SSENs with EHC plans, it is not clear what support arrangements would be available for the approximately 18.3% [3] of the school population with SEN, but without a SSEN.

The importance of maintaining levels of support for young people, including those with disabilities currently provided for by the SEN system , is evidenced by data showing that these groups of learners are less likely to have education al success [4] . The percentage of pupils who achieved 5 or more GCSE grades between A-C or equivalent including English and mathematics was:

· 28% for pupils receiving School Action pro vision ,

· 20% for pupils receiving School Action Plus pro vision , and

· 8% for pupils with a statement of SEN.

This compares with 69% of pupils with no identified SEN.

This difference in outcomes does not just apply to children with learning disabilities . 47% of children whose primary need related to visual impairment attained five good GCSEs including English and math s , and children whose primary need related to hearing impairment scored even lower at 37%.

The Commission's analysis therefore suggests it is important that all young people are identified and provided with the additional specialist support that they require through the new framework.



It is important to prevent regression and ensure that the new provisions and Equality Act 2010 reasonable adjustments duties work together effectively to deliver the aims of the legislation in improving education outcomes for young people. To this end, the Commission would suggest consideration is given to the following matters during committee stage:

Clause 30: Local offer for children and young people with special educational needs 


How schools cater for disabled children in their area could be included in local authorities' published information about SEN provision. This would provide parents and young people with information about how local authorities are delivering statutory obligations and should not incur any extra costs. It would also be a means of raising awareness of the Equality Act 2010 in schools.

Clause 33: Children and young people with EHC plans 


I t sh ould be made clear in this clause that disabled children are covered by the reasonable adjustment duty , as required by the Equality Act 2010 , regardless of whether they have an EHC plan or not . This includes making adjustments to provisions, criteria or practices, and the provision of auxiliary aids and s ervices .

Clause 34: Children and young people with SEN but no plan 


Provision for those learners without EHC plans who currently receive support under School Action or School Action P lus categories could be included in primary legislation, rather than in regulations.

Clause 36: Assessment of education, health and care needs 


The draft clauses of the Children and Families Bill, published in 2012 made no provision for a parent to request an assessment of special educational needs, as provided for in the Education Act 1996.

The Commission s analysis is that this has been remedied by virtue of clause 36 in the b ill , which provides that a request for a local authority in England to secure an EHC needs assessment may be made by the child’s parent, the young person or a person acting on behalf of a school or post-16 institution.

However, there is no time limit within which a local authority must respond to a request for an EHC needs assessme nt , as there is within section 329 of the Education Act 1996. The Commission 's analysis suggests that , to avoid regression, a time limit similar to section 329 of the Education Act 1996 c ould be introduced, and that consideration is given to including this in primary , rather than secondary legislation.

Clause 37: Education, Health and Care Plans 


Where a child has a disability under the Equality Act 2010, and reasonable adjustments have been made for that child, there could also be a requirement for this to be recorded in the EHC plan or what might be defined as an ' EHC (reasonable adjustments) plan ' .

Clause 45: Ceasing to maintain an EHC Plan 


Clause 24 of the draft b ill provided for a local authority to cease to maintain an EHC plan with no notice of a right to appeal and without continuation of the provision until expiry of the appeal period ( as is the situation now in relation to the cessation of a statement ) . The Commission ' s analysis is that this has been remedied in c lause 45 of the b ill , whereby the plan continues until after the end of the period for bringing an appeal or after the appeal has been determined.

However , there is no provision regarding notice being provided to the parent, as currently is required under Schedule 27, paragraph 11(2) of the Education Act 1996 . To ensure no regression, the Commission's analysis suggests this should be included in the b ill .

Clause 66: Code of Practice 


The new Code of Practice could set out arrangements for pupils with educational needs not deemed severe enough to warrant a plan, who currently are dependent upon provisions in the statutory SEN code for identification of their needs and for provision of support.

Role of the Equality and Human Rights Commission 

The Equality and Human Rights Commission is a statutory body, established under the Equality Act 2006. It is the independent advocate for equality and human rights in Britain. It aims to reduce inequality, eliminate discrimination, strengthen good relations between people, and promote and protect human rights.

The Commission enforces equality legislation on age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation, and encourages compliance with the Human Rights Act. It also gives advice and guidance to businesses, the voluntary and public sectors, and to individuals.

The Commission has a power under section 11 of the Equality Act 2006 to advise government on the effectiveness of equality and human rights enactments and the likely effect of a proposed change of law.  In addition, as a UN accredited National Human Rights Institution (NHRI), the Commission is required to comply with the Paris Principles, which include: ‘Advising Government, the Parliament and any other competent body on specific violations, on issues related to legislation and general compliance and implementation with international human rights instruments’. 

March 2013

[1] Article 24, s 1 (b) Convention on the Rights of Persons with Disabilities, United Nations 2006

[2] ' Support and aspiration: A new approach to special educational needs and disability - A consultation ' , Department for Health 2011

[3] DfE SEN SFR (2010). Note: the total proportion of children with SEN is higher than the sum of those at School Action level, School Action Plus level or with a statement of SEN, as some children are reported as having SEN (but not a statement), but whether they are at School Action or School Action Pluslevel is not reported

[4] Department for Education (2013) GCSE and Equivalent Attainment by Pupil Characteristics in England, 2011/12, SFR04/2013

Prepared 19th April 2013