Memorandum from the Independent Panel
for Special Education Advice (IPSEA) (DDB 92)
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. Seventy per cent 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 EA 1996
The "reasonable steps" which "responsible
bodies" must take to avoid discrimination, set out under
s 28C 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 v 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; and
(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 s 316
On 20 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 paragraph
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 paragraph 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 316A) 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 (ie 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.
February 2004
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