The UN Convention on the Rights of Persons with Disabilities - Human Rights Joint Committee Contents

Memorandum submitted by Disability Equality in Education

  1.  Disability Equality in Education is a charity and the lead provider of training for inclusive education and disability equality to the education system in the UK. Richard Rieser our Director also represented the UK Disabled Peoples Council at the Ad Hoc Committee in New York and is the Representative on the European Disability Forum.

  2.  Following the publishing of a statement on the Convention by Minster for Disabled People, Ann McGuire, on the 6 May, which indicated that the DCSF were going to reserve on Article 24 and also place an interpretive declaration on Article 24 on Education the Council for Disabled Children has been keen to meet with representatives of the DCSF. The DCSF proposals run counter to our Inclusion Policy adopted by the CDC and the Special Education Consortium. (See Appendix 2)

  3.  Article 24 Education was much discussed in the Ad Hoc Committee in New York which drafted the convention. In expressing reservations to the new Disability Convention which would have the effect of retaining separate special schools for some disabled children permanently in UK, DCSF is struggling with doubts similar to those debated and resolved between countries round the world when the Convention was eventually agreed at the UN in 2006 after years of negotiations.

  4.  The doubts at the UN took two main forms: doubts about whether it was necessary for some children to be separated on a full-time basis in order to receive an effective education and doubts about the current capacity of education systems to fulfill obligations required by the Convention.

  5.  During the negotiations countries who questioned whether effective education for all was possible without separate, special schools, especially for students who are blind and/or deaf, were urged to consider the extent of successful inclusive practice already existing. Case studies of inclusion working were based on accommodation, support and flexible groupings for individual needs in mainstream settings.

  6.  Text in earlier drafts of the Convention which would have given a choice of special education in separate settings was removed and so were words which envisaged alternatives in case of inadequacy of mainstream settings. Discussions and debate on Article 24 continued until the final days of negotiations when agreement was finally reached on a goal of inclusive education.

  7.  The UK Government played a leading role in these discussions with frequent communication with the relevant Departments in the UK. Liz Tillet, who was leading the negotiations for the UK, stated that the final wording of Article 24 had the approval of the then Department for Education and Skills.

  8.  It was felt that the General Education System in the UK was inclusive and fitted in with the wording of the Convention. There were three major debates at the Ad Hoc Committee on the question of choice and inclusion. Each time the argument for inclusion as the norm was won in order to accord with the principles of the Convention and the human rights of disabled people. The Principles of the Convention are contained in the preamble, Article 1 the Purpose and Article 3. General Principles these include:

    "Full and effective participation and inclusion in society" (3c).

    "Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity" (3d).

    Equality of opportunity (3e) and "Accessibility" (3f).

  Inclusion is viewed as a fundamental freedom in the Convention.

  9.  The DCSF has indicated "that there is a need to recognise that the general education system in the UK includes a range of provision, including mainstream and special schools which will require and interpretive declaration". This statement misses an important point.

  10.  The CRPD provides aspirations in the area of social, economic and cultural rights that state parties will work towards. Article 4.2 makes this very clear. The full realization of theses rights, including Article 24, are to be achieved "progressively". This provision recognises that existing practices and structures do not fulfill the principles of the Convention and lead to discrimination, prejudice and unequal life chances for disabled people. This clause allows state parties time to plan, to change the built environment, to build capacity and to challenge and change negative attitudes and practices. The Duty to Promote Disability Equality is a good example of this in UK schools. All state schools are all expected, through a series of three year Disability Equality Schemes, to eradicate discrimination and harassment towards disabled people and promote positive attitudes, equality and opportunities to be involved in public life for disabled people. The Government and DCSF could adopt of a position similar to that which the Government adopted in the Life Chances Report (2005).

    "By 2025, disabled people in Britain should have full opportunities and choices to improve their quality of life, and will be respected and included as equal members of society."

  11.  Then, if an interpretive declaration on Article 24 is seen as needed, it should incorporate this sentiment. There does not seem to be any need for this as the concept of progressive realization applies to Article 24-Education. Therefore there is no need for this interpretive declaration as the general education system and the statutes that cover it have a pre-disposition to inclusive education which will develop over time eg The 2001 SEN and Disability Act.

  12.  However, if DCSF still feels the need for an interpretive declaration then this should read as follows:

    "UK Government is committed to developing an inclusive education system where mainstream primary and secondary schools and staff will have the capacity to effectively educate the full range of disabled children. Currently the education system must be taken to mean mainstream and special schools with some children whose needs are met by specialist provision being met some way from their home. We aim through improving capacity that by 2025 that all will be able to have their needs met in local mainstream provision."

  13.  This formulation is progressive, whereas the current suggestion of an interpretive declaration from DCSF does not contain a recognition of progression and would maintain and increase the educational disadvantage disabled pupils experience in the education system and the consequent impact on their loss of life chances in their transition to adult life.

  14.  If the time scale "2025" causes an insurmountable problem "so that over time" could be substituted.

  15.  The DCSF have also stated that there will also be a need to have a reservation to Article 24 "in respect of disabled children whose needs are best met through specialist provision, which may be some way from their home". The arguments stated above apply equally here. Just because this is how specialist provision is provided now is not a reason to have a reservation given the concept of progressive realization.

  16.  OFSTED (2006)[46] examining the best provision for the range of disabled children found that resourced mainstream school provided the best specialist provision for disabled pupils. The DfES pack "Implementing the Disability Discrimination Act in Schools and Early Years" (2006)[47] based on over 300 interviews in 41 schools, identifies key factors in the development of inclusive provision that met the full range of needs of disabled children. These were:

    —  a vision and values based on an inclusive ethos;

    —  a "can do" attitude from all staff;

    —  a pro-active approach to identifying barriers and finding practical solutions;

    —  strong collaborative relationships with pupils and parents;

    —  a meaningful voice for pupils;

    —  a positive approach to managing behaviour;

    —  strong leadership by senior management and governors;

    —  effective staff training and development;

    —  the use of expertise from outside the school;

    —  building disability into resourcing arrangements;

    —  a sensitive approach to meeting the impairment specific needs of pupils;

    —  regular critical review and evaluation; and

    —  the availability of role models and positive images of disability.

  17.  This list demonstrates that developing schools to accommodate a widening diversity of disabled pupils is not fundamentally about developing specialist provision, but is about developing whole school policies, practices and procedures which tackle the barriers that have traditionally discriminated against disabled pupils.

  18.  The "social model" of disability, which the Government has adopted as a paradigm in the Life Chances Report, in the 2005 Disability Amendment Act and is at the core of the UN Convention, requires a dynamic rethink of existing concepts of special education. Geographically discrete specialist provision to which disabled children are allocated, based on their type of impairment, does not fit with the paradigm shift identified in the Convention. While these are currently available as a choice for parents there is considerable evidence that such a "choice" is often made because of the inadequacies of the mainstream rather than a whish for specialist provision. Many parents have identified themselves as refugees from the mainstream.

  19.  Then Convention requires reasonable accommodations for disabled people in all mainstream services and Article 24 requires appropriate individual support for the individual disabled person to be successful.

  20.  The phrase "some way from their home" may contradict Article 19 when applied to residential special schools, which states that "people with disabilities should have the opportunity to choose their place of residence"| and "are not obliged to live in particular living arrangements". In 19 b) goes on to emphasise that providing the necessary support for living and inclusion in the community and to prevent isolation or segregation from the community. A number of Local Authorities have systematically reduced their reliance on this type of provision over the lat 30 years eg Oxfordshire, Newham, Barnsley and Wakefield and that there is no reason why others could not be encouraged to follow their example.

  21.  Article 23 on Family Life, paragraphs 3, 4 and 5 could well be breached by the insistence on best meeting disabled children's special needs some way from their home. This will be particularly the case if the primary reason for the separation of a disabled child from their family is their disability.

    "3.  States Parties shall ensure that children with disabilities have equal rights with respect to family life. With a view to realizing these rights, and to prevent concealment, abandonment, neglect and segregation of children with disabilities, States Parties shall undertake to provide early and comprehensive information, services and support to children with disabilities and their families.

    4.  States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. In no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents.

    5.  States Parties shall, where the immediate family is unable to care for a child with disabilities, undertake every effort to provide alternative care within the wider family, and failing that, within the community in a family setting."

  22.  The reservation the DCSF are considering could be considered as running counter to the principles of the Convention. Article 46 states.

    "Reservations incompatible with the objects and purpose of the present Convention shall not be permitted."

  The development of more inclusive approaches to disabled children and young people and their education over time requires progressive realisation and will not be served by a reservation such as proposed by DCSF.

  23.  Some of the issues touched upon here are complex, but the suggestions offered here seek to help DCSF plot a course which will enhance the human rights of disabled children.

  24.  Fourty-one countries have ratified and none of these including Australia, New Zealand,South Africa, India, China, Brazil, Spain have found it necessary to put forward a reservation or interpretive declaration on Article 24. The job at hand is to convince the UK Government to get into the spirit of the paradigm shift and progressive changes needed to give disabled people full equality which has to include effective inclusive education.

2 November 2008

46   OFSTED (2006) Inclusion: Does it matter where pupils are taught 2006-17 OFSTED, London;jsessionid=LrnlBPJJx3v8rQ9FhvM0 Back

47   DFES (2006) Implementing the Disability Discrimination Act in Schools and Early Years DfES,London and The Stationary Office for Shorterned Version Back

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2009
Prepared 4 January 2009