DDB 92 Independent Panel for Special Education
Advice
Protecting the educational
rights of
children with disabilities
A submission to the Select Committee
on the Disability Discrimination Bill by the Independent Panel
for Special Education Advice (IPSEA).
IPSEA is a national charity, established
in 1983, which aims to provide free and independent advice to
parents/carers of children with special educational needs on their
children's entitlement to an appropriate education service under
special education law (and, since 2002, under disability discrimination
law.).
IPSEA currently supports around 4,500
parents/carers a year including one third of those parents
who appeal annually to the Special Educational Needs and Disability
Tribunal. We target information about our services to parents
who are likely to be in most need of our help and as a result
50% of parents calling us are from households with annual incomes
of below £15,000 a year. 70% of those we represent at Tribunals
also fall in this income group.
IPSEA has been successful in the past
in suggesting legislative change to Government which has improved
the situation for children with sen We base proposals for change
on the lessons learned from our casework and we hope that the
Select Committee will give consideration to the following concerns,
which we believe could be addressed through amendments to the
Bill currently under their consideration.
A: Amendments to the Disability Discrimination
Act
1. The need to include in the Bill
as 'discrimination' LEAs' failure to fulfil their
duties under Part IV BA 1996.
The 'reasonable steps' which 'responsible
bodies' must take to avoid discrimination, set out under s28C
DDA 1995, exempt the provision of 'auxiliary aids or services~
as a potential 'reasonable step'. This is a cause of confusion,
given that failure to provide appropriately for an individual
child's educational needs is being considered by SENDIST
and the High Court as a potential ground for claiming discrimination
(see the summary of the Buniak case by David Ruebain on IPSEA's
website:
www.ipsea.org.uk. and the judgment
in Mcauley High School vs SENDIST 2003).
Although the definition of 'special
educational needs' in BA 1996 is not the same as the definition
of 'disabled' in the DDA 1995 in practice, the overwhelming majority
of children who fall under one definition fall also under the
other. Further, in IPSEA's experience, the major cause of disability
discrimination in schools is pupils not receiving appropriate
or sufficient educational provision, given their special educational
needs, with the result that they are placed at a disadvantage
in their educational prospects when compared to pupils who do
not have disabilities.
Education Authorities' key specific
duties toward children with special educational needs, under Part
IV of the Education Act 1996, are:
(i) to identify those children who
have special educational needs which call for the authority (rather
than a school) to assess and to determine the provision required
to meet their needs;
(ii) to undertake statutory assessment
of children's special educational needs and to determine the provision
required to meet these needs, when this is necessary;
(iii) to make Statements of Special
Educational Needs which set out all of a child's needs as assessed
and which specify the special educational provision required to
meet those needs;
(iv) to maintain Statements and to
ensure that the special educational provision specified is arranged
for the child.
An LEA's failure to fulfil these duties
prejudices disabled children's legal entitlement to appropriate
and sufficient special educational provision when this is required.
For this reason, IPSEA believes that failure to fulfil Part 4
EA 1996 duties should be unambiguously defined as 'discrimination'
under the DDA. We believe that this will help ensure that these
key duties are taken more seriously by LEAs.
2. When claims of disability
discrimination are upheld by SENDIST. the need for Orders to include
a deadline for their implementation.
Evidence is emerging that 'responsible
bodies' are failing to comply with Orders issued by SENDIST following
findings of discrimination. When an Order is issued following
an appeal under Part IV EA 1996 re. an action which an LEA must
take with regard to a child's special educational needs, the SEN
Regulations stipulate a legal deadline for the implementation
of that Order. This is not the case with Orders issued following
findings of disability discrimination.
There is potential for a wide variety
in the Orders made by a tribunal on upholding a claim of discrimination
and we believe that it would not be feasible to set out deadlines
in regulations which attempt to cover every eventuality. What
would be feasible, and beneficial, though would be for tribunals,
when making an Order, to have a duty to fix a deadline for the
implementation of the Order and to make this explicit in the Order
itself.
This safeguard for disabled children
could be achieved with a minor amendment to the legislation.
3. The need to revise the current
inadequate arrangements for hearing claims of discrimination
when children are excluded from school.
Under the current arrangements:
a. parents wishing to appeal against
a fixed term exclusion (typically an exclusion lasting a few days
or weeks at most) must wait for months to present their claim
of discrimination to the SENDIST; whereas
b. parents wishing to appeal against
a permanent exclusion have their hearing and their claim of discrimination
considered by a local appeal committee much within a matter of
weeks.
As a result, making a claim of disability
discrimination to SENDIST appears irrelevant to many parents whose
children have been excluded for fixed terms, as their child will
have returned to school long before the hearing takes place. This
is discouraging parents from bringing claims to SENDIST.
Also, under the current arrangements,
Local Exclusion Appeals Committees do not have the power which
SENDIST has to issue Orders requiring school governors to take
action to prevent discriminatory exclusions happening in the future.
Local Exclusion Appeal Committees may only order re-instatement
of the child if an appeal is upheld, even in situations where
they find that a school has discriminated and is likely to continue
to discriminate on the basis of disability.
As a result, parents who believe that
their child has been discriminated against in being permanently
excluded, but who do not want their child to return to the excluding'
school, see little point in appealing and as a consequence their
claim of discrimination is not made -
and a school's potentially discriminatory
behaviour is not challenged.
Unjustified exclusions from school
for reasons related to children's disabilities have emerged as
the most common form which disability discrimination is taking
in education. Unfortunately, the DDA 1995 as amended does not
provide suitable or appropriate remedies for either fixed term
or permanent exclusions.
The problems being caused by
a. the separation of the roles of the
SENDIST and the Local Exclusion Appeal Committees; and
b. the limited powers of the Local
Exclusion Appeal Committees
need to be addressed and the DDA Bill
presents an opportunity for this. In our view, it would be desirable
for Local Appeal Committees to be given the same power to issue
Orders with respect of Governors' future conduct as the SENDIST
enjoys and not be limited to simply ordering re-instatement when
a claim of discrimination is upheld
B: Amendments
to Part 4 of the Education Act 1996
1. The need revisit s3 16
On 20th February 2004, the Court gave
judgment in H -v- Hounslow. The case concerned, in part, the interaction
between the longstanding provisions of paragraph 3 of Schedule
27 of the 1996 Education Act and the "new" provisions
of section 316/316A of that Act.
It is the first time the High Court
has considered the changed provisions, which replaced the old
section 316. The principal change was that the qualified duty
to secure a mainstream place for a child (pursuant to a policy
of "inclusion" of children with SEN in mainstream) is
no longer disqualified by "suitability" or the "efficient
use of resources" (as it was under the old section 316);
and an LEA/school relying on the main remaining disqualifier (when
faced with a parental request for mainstream) -
incompatibility with the education
of other children -
can only do so where there are
no reasonable steps which can be taken in the school in question,
or in mainstream schools generally, to remove the incompatibility.
However, the judge held that, even
when para 3(3) of Schedule 27 is not actually in play (because,
for example, a parent has suggested a particular school in the
course of the appeal to the Tribunal rather than pursuant to para
3(2) the factors which it allows to disengage the right of a parent
to the maintained school of their choice nonetheless apply.
Those factors include "suitability"
and "efficient use of resources
The effect of the judgment -
it seems -
is that if a Tribunal is considering
a particular school (by whatever route) it can reject it on suitability
and efficient use of resources grounds; but if no particular school
is in play, the Tribunal must specify "mainstream" as
a type of school in Part 4 of the child's Statement even if, were
every individual school to be considered one-by-one, the wider
factors would come into play and each such school would then be
rejected.
Accordingly, a child can obtain a right
to a mainstream placement in the LEA's area, but then find that
every individual mainstream school is actually then ruled out.
So the "right" to mainstream is worthless. And, on the
judge's analysis, the amendments to section 316 (and the introduction
of the new 31 6A) have brought no practical benefits for children
who want inclusion -
the old ''suitability"
and ''efficient use of resources" disqualifiers apparently
remain in play.
Thus, statutory amendments which were
specifically brought in to secure inclusion in all but the most
extreme cases have -
if the judge is right -
made no material. That is plainly
wrong. And yet that is exactly the result of this judgment.
The parent, Mrs H, is seeking to appeal
the judgment, but may not get Public Funding to do so. Even if
she does, the Court of Appeal may refuse her permission to appeal
because, technically, she succeeded in her appeal (the Tribunal's
decision was quashed on the grounds that the Tribunal did not
give lawfully sufficient reasons for its decision). In terms of
both funding, and the appeal, she is thus heavily reliant on the
fact that her case raises issues of wider public importance (for
large numbers of children with SEN).
But, if Mrs H is unable to pursue and
appeal, or loses it, then the effect is that the changes to section
316 of the 1996 Act will (because of lack of clarity in the relationship
with Paragraph 3 of Schedule 27) have produced very little practical
gain for children with SEN; which was plainly not Parliament's
intention.
It may thus be that further legislation
is required. The facility which the DD Bill offers for amending
s3 16 EA 1996 may well be crucial if the Government's aims with
regard to the inclusion of children with sen in mainstream schools
are to be realised.
2. Preventing the risk of disruption
to a placement/provision when Statements are first issued
and amended and the effect is to change a child's school placement.
There is a risk of unnecessary disruption
to a child's education when LEAs seek to change their school either
when Statements are first finalised or when they are subsequently
amended (to change Part 4). In both situations parents are able
to appeal to SENDIST against the school named in the new or amended
Statement and when they intend to do this it clearly makes sense
to leave a child where they are until the outcome of the appeal
is known. This would avoid the risk, in situations where parent's
appeals are successful, of the disruption caused by two changes
of school placement within a very short period of time (i.e. 4
months).
The Disability Discrimination Bill
presents an opportunity to amend Schedule 27 of EA 1996 in order
to replicate the 'stay' which takes effect when parents wish to
appeal against an LEA ceasing to maintain their child's Statement.
In this situation, if a parent appeals, the Statement remains
in place until SENDIST has made a decision. Children's best interests
would be served by this 'stay' also having effect when LEAs propose
to change a school placement via finalising or amending a Statement
and the parent intends to appeal.
IPSEA
February 27111 2004
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