499.In 2014 17.9% of pupils in England, and 22% in Wales, had special educational needs (SEN). Not all children with SEN are disabled, and not all disabled children will be classed as having special educational needs. Nevertheless, the data on SEN provides a strong indication of the situation of disabled children more generally. The Equality and Human Rights Commission research for ‘Is Britain Fairer?’ revealed significant inequalities in education:
500.Other concerns highlighted by witnesses were the rate of informal exclusions, where a report by the Children’s Commissioner in 2013 had shown a disproportionate impact on children with special educational needs, and what the Alliance for Inclusive Education believed to be the segregation of disabled children within mainstream schools.
501.Witnesses argued that the current framing of the definition of disability under section 6(1) of the Equality Act was, inadvertently, acting to deter schools from making some of the reasonable adjustments needed to address such inequalities. Regulation 4(1) of the Equality Act 2010 (Disability) Regulations 2010 provides that “a tendency to physical or sexual abuse of other persons” is not to be treated as an impairment for the purposes of the definition of disability. This is for “public policy reasons, for example to avoid providing protection for people where the effect of their condition may involve anti-social or criminal activity.” IPSEA and the Alliance for Inclusive Education were concerned that the exclusion had resulted in schools moving straight to exclusion of pupils with challenging behaviour, without first considering whether reasonable adjustments could prevent it. Claire Jackson for IPSEA told us in oral evidence:
“Common examples include children on the autistic spectrum, children with attention deficit hyperactivity disorder, and children with various types of mental health difficulties. … Quite often they present as challenging because reasonable adjustments have not been made for them … if the child is then excluded for that physical aggression and that interaction, we have seen an increase in governing bodies relying on that to rebut a claim of disability discrimination. They say, “Yes, we accept the child is disabled, but they have a tendency to physical abuse”.”
502.We agree with the public policy reasons, but believe that treating a tendency to physical abuse as not amounting to an impairment has, unintentionally, discouraged schools from paying sufficient attention to their duties under the Act. Removal of the exclusion would allow a proper examination to be made of any suggestion of disability discrimination, including a failure to make a reasonable adjustment. This would not result in schools being required to tolerate violent behaviour—the flexibility of the reasonable adjustment duty would, for example, allow a school to take into account the needs of the wider school population.
While each child will be different, the following are some examples that could be used for children with challenging behaviour, autism or learning difficulties:
Source: Examples adapted from the Special educational needs and disability code of practice: 0 to 25 years, January 2015, DfE
503.Schools should be encouraged and supported to make the kinds of adjustments that can help to address the educational inequalities faced by disabled children and young people, including those whose disability gives rise to challenging behaviour. This is undermined by Regulation 4(1) of the Equality Act 2010 (Disability) Regulations 2010, and we recommend that the Regulations are amended so that a tendency to physical abuse of other persons ceases to be treated as not amounting to an impairment for the purposes of the definition of ‘disability’.
504.Ofsted has an important role in challenging education providers to “improve services within the spirit of the law”, but the National Deaf Children’s Society were concerned that Ofsted did not frequently “inspect the adequacy of accessibility plans and strategies” and that their most recent annual report “contained only a very brief reference to children with disabilities or special educational needs.” The Association of Colleges agreed, but suggested that “this may change with the new Common Inspection Framework”, which Nick O’Brien also flagged as giving “a more prominent place to equality issues.” Lesley Cox, Ofsted National Lead for Special Educational Needs, explained that judgments under the common inspection framework “include personal development and welfare, academic outcomes, progress against measured targets, leadership and management, as well as the quality of teaching.” She told us that:
“If we found any discrimination or concerns against individuals, or particularly groups of students, in the sense of special educational needs, we would then reflect that in our judgments on leadership and management and, indeed, the other judgments that we make, and the school would be placed into a category of concern.”
Asked if she believed that Ofsted inspections were able to pick up evidence of informal exclusions, she replied: “We would expect the school to have information about where every student was at any part of the term. We ask for that information and we would interrogate that quite clearly, in terms of any unaccounted absences.”
505.Furthermore, the Department for Education highlighted that Ofsted was “going to be introducing a new system of inspecting local area performance on special educational needs and disability.” The consultation document, issued jointly with the Care Quality Commission, made no explicit reference to the Equality Act or to schools’ duties and others’ under it, and nor did the report on the responses to the consultation. Nevertheless, the consultation report makes it clear that local area inspections will be seeking to evaluate outcomes for children and young people, including but not limited to academic outcomes. This should provide an opportunity to identify and act on educational disadvantages facing disabled students.
506.It is unfortunate that the Ofsted and CQC consultation on the inspection of local areas’ effectiveness in “identifying and meeting the needs of children and young people who have special educational needs and/or disabilities” did not make mention of the Equality Act or schools’ and others’ duties under it. This ought to be remedied in the development of the inspection framework and inspection handbook.
507.The inclusion of equality matters in the Common Inspection Framework on education, skills and early years is welcome. Ofsted’s inspection methodology will also need to be adequate to identify where schools are practising informal exclusion or internal segregation of disabled pupils.
717 Under the Education Act 1996 and the Children and Families Act 2014, a child in England and Wales is described as having a SEN if they have a learning difficulty which calls for special educational provision to be made for them. A child (or young person aged 16-25) has a learning difficulty if they: have a significantly greater difficulty in learning than the majority of children of their age, and/or have a disability which either prevents or hinders them from making use of educational facilities of a kind generally provided for children of their age in mainstream schools within the area of the local authority (and, in the case of those over 16, in mainstream post-16 institutions). A different definition is used in Scotland—that of children with Additional Support Needs (ASN)
718 Equality and Human Rights Commission, Is Britain Fairer? Evidence Paper Series (November 2015) Evidence Paper Domain E: Education: [accessed 2 March 2016]
719 Equality and Human Rights Commission, Is Scotland Fairer? (November 2015) p 26: [accessed 2 March 2016] This may, however, have been a result of better recording and an expanded definition (p 27)
720 Equality and Human Rights Commission, Is Britain Fairer? Evidence Paper Series (November 2015) Evidence Paper Domain E: Education: [accessed 2 March 2016]
723 Claire Jackson (), referencing the report Office of the Children’s Commissioner “Always Someone Else’s Problem” Office of the Children’s Commissioner Report on illegal exclusions (April 2013): [accessed 2 March 2016]
724 Written evidence from the Alliance for Inclusive Education ()
725 Equality Act 2010 (Disability) Regulations 2010 ()
726 (SI 2010/2128)
727 (Claire Jackson)
728 Written evidence from the British Deaf Association (), the Association of Colleges (), the Association of National Specialist Colleges () and the Challenging Behaviour Foundation ()
729 Written evidence from the National Deaf Children’s Society ().
730 Written evidence from the Association of Colleges ()
731 (Nick O’Brien)
732 (Lesley Cox)
734 (Ann Gross)
735 Ofsted & CQC, ‘The inspection of local areas’ effectiveness in identifying and meeting the needs of children and young people who have special educational needs and/or disabilities: A report on the responses to the formal consultation’ March 2016: [accessed 15 March 2016]