Wednesday 18 January 2006
@BR@
@CENTER@
@TABLE60%@Members present:
Mr Barry Sheerman, in the Chair / Jeff EnnisMr Douglas Carswell / Stephen Williams
Mr David Chaytor / Mr Rob Wilson
Mrs Nadine Dorries
@/CENTER@
@HR25@
CONTENTS
Memorandum submitted by the Disability Rights Commission
Witnesses: Mr Steve Haines, Policy Manager for Education and Employment, Ms Cathy Casserley, Senior Legislative Advisor and Ms Phillippa Russell, Commissioner, Disability Rights Commission, gave evidence.
Question Numbers
276-279
280-299
300-319
320-326
Memorandum submitted by the Independent Panel for Special Education Advice (IPSEA)
Memorandum submitted by the Children’s Legal Centre
Memorandum submitted by the Advisory Centre for Education
Memorandum submitted by the Law Society
Witnesses: Mr John Wright, Chief Executive, Independent Panel for Special Education Advice, Ms Julia Thomas, Solicitor, Children's Legal Centre, Ms Chris Gravell, Policy Officer, Advisory Centre for Education, and Mr David Ruebain, Solicitor, Law Society, gave evidence.
327-339
340-359
360-379
380-387
Supplementary memorandum submitted by Independent Panel for Special Education Advice
Memorandum submitted by the Disability Rights Commission
Executive Summary
The Disability Rights Commission (DRC) was created by the Disability Rights Commission Act (DRCA) 1999.
The DRC is uniquely placed to comment on the provisions of the DDA as the statutory body responsible for the legislation and we would encourage the Committee to invite DRC to give evidence when considering its provisions.
@UL@—The DRC has set itself a vision of; “A society where all disabled persons can participate fully as equal citizens".@/UL@
@UL@—The DRC believes that any discussion on the education of disabled children should begin from the point of how our schools can improve the quality of experience and the outcomes achieved by disabled young people.@/UL@
@UL@—Central to achieving this goal will be the successful implementation of the Disability Equality Duty, as set out in the Disability Discrimination Act 2005, which has introduced a duty on all public authorities to promote equality for disabled people.@/UL@
@UL@—It is necessary to address the shortfalls and problems in mainstream provision to improve the quality of experience and outcomes for disabled young people. It is not sufficient to accept low quality outcomes from mainstream schools as the basis for supporting special schools.@/UL@
@UL@—Successful delivery of the SEN process should be measured by the effect it has on the participation and progress of children with SEN and disabled children. This is more than appraising whether the system is “meeting needs", it is about promoting full participation and supporting children to reach their potential.@/UL@
@UL@—There are a number of concerns about the quality of education provision in special schools. The DRC believes that inclusive schooling is key to tackling the roots of discrimination in society.@/UL@
@UL@—The DRC supports the presumption contained within SENDA that a mainstream placement should remain the preference for all children unless it is against the parents or child's wishes or the effective education of other children.@/UL@
1.Background
1.1The Disability Rights Commission (DRC) was created by the Disability Rights Commission Act (DRCA) 1999. Section II of the DRC Act imposes the following duties on the Commission:
@UL@—to work towards the elimination of discrimination against disabled persons;@/UL@
@UL@—to promote the equalisation of opportunities for disabled persons;@/UL@
@UL@—to take such steps as is considered appropriate with a view to encouraging good practice in the treatment of disabled persons; and@/UL@
@UL@—to keep under review the workings of the Disability Discrimination Act (DDA) 1995.@/UL@
The DRC has set itself the vision:
“A society where all disabled persons can participate fully as equal citizens."
As part of our strategy to achieve this vision, the DRC has two core expectations for education. By 2014 we want to see:
Objective 1: Increased educational attainment amongst disabled people aged 16-24: a narrower in between disabled and non-disabled people.
Objective 2: Disabled people's full participation in school and college life and across the curriculum.
2.The Extent and Nature of the Exclusion of Disabled People from Education—Key Facts
@UL@—21% of disabled people aged 16-24 have no qualifications whatsoever, compared to 9% of non-disabled people of the same age—an 11% gap (Labour Force Survey,Autumn 2004)@/UL@
@UL@—Disabled young people are 40% as likely to go into higher education aged 18 as non-disabled 18-year-olds. (National Audit Office, Widening Access to Higher Education, January 2002)@/UL@
@UL@—The Labour Force Survey in 2000-01 found one in 20 disabled people were at a college of further or higher education or university, compared to one in 10 of the rest of the population. Although the number of disabled pupils participating in higher education has since increased year on year—the gap has continued to widen as participation by non-disabled people has grown much more rapidly over the same period. (HESA 2004.)@/UL@
@UL@—Disabled 16-year-olds are twice as likely to be out of work, education or training as their non-disabled peers (15% compared to 7%) (DfES, Youth Cohort Study: The Activities and Experiences of 16-Year-Olds: England and Wales 2004.)@/UL@
@UL@—55% of families with a disabled child are living at or on the margins of poverty (Gordon and Parker 2000). 29% of people with a disabled child in the household live in poverty, compared with 21% of households with no disabled children. (Households below average income DWP 2003.)@/UL@
@UL@—Over a third (38%) of children questioned in a DRC survey said they'd been bullied, with one in 20 saying they'd been bullied by teachers (NOP, Young Disabled People: a survey of the views and experiences of young disabled people in Great Britain DRC, 2002.)@/UL@
@UL@—74% of disabled young people interviewed in a survey said they did not feel they were “active citizens" in their local communities and felt the Government had a limited awareness of their needs and rarely listened to their views (PMSU, Improving the life Chances of Disabled People, 2005.)@/UL@
@UL@—Data for 2001-02 showed that children with SEN were 13 times more likely to be permanently excluded than those without SEN. (Removing Barriers to Achievement, DfES 2004.)@/UL@
2.1.1The DRC funded and won a case in 2003 on behalf of Lee Buniak, a six-year-old boy, who was excluded from school activities including assembly, singing, computers, numeracy and literacy work and the school play and school photograph. Despite the school being given funding for a full time learning support assistant (LSA), for most of the time he attended the school it failed to appoint a suitable full time support worker. The Tribunal upheld that the school had discriminated against Lee by treating him “less favourably" because of his disability and that the school failed to adopt a practice of recruiting or retaining support staff for Lee.
2.1.2PPC v DS and CAS and SENDIST was an appeal to the High Court against a SENDIST DDA decision. The case involved a 17-year-old boy attending an independent school, who had be reprimanded by the school for issues relating to his behaviour. Two educational psychologists assessed the boy and they wrote to the school confirming the diagnosis of Asperger's Syndrome, stating that a more detailed report would follow. After receiving the letter, the headteacher contacted the boy's parents and asked them to remove him from the school. The judgement of the court confirmed that schools cannot justify excluding disabled pupils if there were reasonable adjustments that they could have made but did not make.
3.The Legislative Framework for SEN Provision and the Effects of the Disability Act 2001, Which Extended the Disability Discrimination Act to Education
3.1Background
3.1.1The DRC is uniquely placed to comment on the provisions of the DDA as the statutory body responsible for the legislation and we would encourage the Committee to invite the DRC to give evidence when considering its provisions.
3.1.2From Exclusion to Inclusion: Final Report of the Disability Rights Task Force suggested that the provisions of the Disability Discrimination Act (DDA) should extend to education. The report suggested that “The right to inclusion is not sufficient in itself. Disabled people must have the right to pursue their education without unfair discrimination."
3.1.3It was intended that the existing provisions of the SEN Framework would continue to provide the basis for assistance for disabled children in accessing the curriculum. In addition, though, the Task Force recommended that the legislation should:
@UL@—Strengthen the rights of parents of children with statements of SEN to a mainstream placement, unless they want a special school and a mainstream school would not meet the needs of the child or the wishes of either the parent or child.@/UL@
@UL@—Place providers of school education under a statutory duty not to discriminate unfairly against a disabled pupil, for a reason relating to his or her disability, in the provision of education.@/UL@
@UL@—Place providers of school education under a statutory duty to review their policies, practices and procedures and make reasonable adjustments to any that discriminate against disabled pupils for a reason relating to their disability.@/UL@
@UL@—Place providers of school education under a statutory duty to take reasonable steps to provide education using an alternative method, so that the disabled person is no longer at a substantial disadvantage, where a physical feature places an individual disabled pupil at a substantial disadvantage in comparison with pupils who are not disabled.@/UL@
@UL@—Place providers of school education under a statutory duty to plan to increase accessibility for disabled children to schools. This duty should cover both adjustments for physical access, including those for children with sensory impairments, and for access to the curriculum.@/UL@
@UL@—Extend the jurisdiction of the SEN Tribunal to hear cases brought in relation to the new rights.@/UL@
@UL@—Secure comprehensive and enforceable rights for disabled people in further, higher and LEA-secured adult education and include access to services provisions of voluntary organisations providing education, social, cultural and recreational activities and facilities for physical education and training.@/UL@
3.1.4The rights conferred by education legislation for pupils to have their special educational needs identified and met, and in England and Wales, the right to appeal to the Special Educational Needs Tribunal, were maintained.
3.1.5These recommendations became legislation under The Special Educational Needs and Disability Act 2001 (SENDA), which amended legislation in Part 4 of the Education Act 1996 (EA) for children with SEN and Part 4 of the Disability Discrimination Act 1995 (DDA) to introduce rights for disabled people in education. In summary, the disability discrimination legislation sets out:
In England, Scotland and Wales:
@UL@—a duty not to treat disabled pupils less favourably, without justification, for a reason which relates to their disability;@/UL@
@UL@—a duty to make reasonable adjustments so that disabled pupils are not put at a substantial disadvantage compared to pupils who are not disabled (but there is no duty to remove or alter physical features or provide auxiliary aids and services);@/UL@
In England and Wales only:
@UL@—a duty to plan strategically and make progress in increasing accessibility to schools' premises and to the curriculum, and in improving the ways in which written information provided to pupils who are not disabled is provided to disabled pupils.@/UL@
3.1.6From September 2002, it has been unlawful for schools to discriminate against a child for a reason related to their disability in:
@UL@—Admissions.@/UL@
@UL@—Education and associated services, such as: school trips, the curriculum, teaching and learning, school sports and the serving of school meals.@/UL@
@UL@—Exclusions.@/UL@
3.2Definitions
3.2.1A number of DDA cases taken to the High Court have featured the difference between the definitions of disability and SEN. The difference in definitions of Special Educational Needs and Disability, and the different legislative frameworks in which they operate, have caused some difficulties. The DfES emphasised the role of the DDA in their SEN Strategy Removing Barriers to Achievement, however, in schools the emphasis remains firmly on SEN.
3.2.2Not all disabled pupils and students have “learning difficulties" or “SEN". Similarly, pupils and students deemed to have learning difficulties or SEN are not all disabled. The DDA has a specific definition of disability, which can be much broader than the definition of “learning difficulty" within the SEN Framework. Yet policy, regulatory and funding frameworks frequently address the two areas interchangeably because the “groups" overlap. Understandable though this might be, it is important to recognise that the underpinning theory, direction of legislation, and actions required of providers to comply are significantly different.
3.3Coverage of the different legislation
3.3.1The intention of SENDA was for Part 4 of the DDA to sit alongside the SEN Framework and the Planning Duty for schools and local education authorities as a “jigsaw" of provision. The disability duties for schools under Part 4 of the DDA extend to “education and associated services" and hence schools have broader responsibility for ensuring access and opportunity for disabled pupils across the whole life of the school. Unlike the DDA provisions in relation to employment and service provision, there is no duty in the pre-16 education provisions for schools to provide auxiliary aids or services or to alter physical features (these being the elements, which are intended to be covered by the SEN Framework and the planning duty).
3.3.2However, some evidence suggests that the two systems have not been working alongside each other effectively and there are those whose needs are falling between the gap between the DDA duties and the provisions of the SEN Framework. A fundamental problem is the difference between the thinking behind the two systems, with the SEN Framework emphasising “meeting needs" and the DDA emphasising making reasonable adjustments.
3.3.3Disabled children who experience discrimination in school only have rights of redress under the DDA where the school treats them less favourably or fails to make an adjustment to policies, practices or procedures that as a consequence place them at a substantial disadvantage. Should a disabled child require auxiliary aids or services, they would need to access SEN provision. Similarly, duties to increase access to the curriculum, adjustments to physical features and accessible information have been developed separately with LEAs under the accessibility planning duties. Although these plans were expected to be in place by April 2003, the Ofsted report Special educational needs and disability: towards inclusive schools found that over half of the schools they surveyed did not have access plans in place. Only four out of 10 schools surveyed in the same report had satisfactory planning for improved access to buildings and few had planned access to the curriculum.
3.3.4Parents and schools can be confused as to which law applies in which circumstances. The DRC Helpline is having to signpost many callers to other sources of advice and support as their enquiries concern the SEN Framework, rather than the provisions of the DDA. In the area of mediation, the DRC's conciliation service can only handle DDA related issues, with LEA mediation services handling SEN cases. It is also difficult to ascertain either from certain SENDIST decisions or some of those reaching appeal where the line is drawn between what is and what is not an auxiliary aid or service (see for example McCauley Catholic High School & CC, PC & SENDIST CO/4281/2003).
3.4Awareness
3.4.1Although the various strands of legislation are all aimed at promoting inclusive practice, the relatively recent development of the DDA means that awareness of the DDA duties in schools is low. Many schools and other education providers indicate that they need assistance in fully addressing disability as an equalities issue across all aspects of their provision. Schools have welcomed the possibility of training on both the DDA and disability equality generally. In response to this, the DfES and have been working with the DRC and a number of other agencies to develop a resource for schools on making reasonable adjustments and accessibility planning.
3.5Difficulties with enforcement—The SENDIST
3.5.1The Special Educational Needs Tribunal was set up by the Education Act 1993 and was extended to cover both SEN and disability duties appeals by SENDA. It considers parents' appeals against the decisions of Local Education Authorities (LEAs) about a child's special educational needs, where the parents cannot reach agreement with the LEA. However, SENDIST is limited to hearing cases that relate to educational provision.
3.5.2Between September 2002 and November 2004, the SENDIST had 175 claims brought in relation the DDA. These claims have concerned matters such as refusals to administer medication; exclusions of pupils with emotional and behavioural difficulties (EBD), attention deficit / hyperactivity disorder (ADHD), and similar conditions; failures to properly implement identified provision in a statement of SEN; and refusals to allow disabled pupils to go on school trips. [1]
3.5.3There have been concerns relating to the level of awareness of the SENDIST (and Independent Admissions and Exclusions Appeals Panels) of Part 4 and the established case law in relation to other provisions of the DDA.
3.5.4The DRC has difficulty in tracking the case law developments from SENDIST because we do not automatically receive copies of the decisions made, unlike the employment tribunal where there is such a duty. This leaves the DRC dependent upon parents informing us about their individual cases, and leaves us with an incomplete picture of how the system is working and where the case law is evolving. The DRC feel that is would be highly beneficial to have better sharing of knowledge between SENDIST and the DRC (with appropriate safeguards made to ensure the protection of sensitive information).
3.5.5Furthermore, there is an issue around the responsibility to follow up SEN recommendations. SENDISTs do not have the power to award compensation for breach of the DDA. However, they do have the power to make recommendations as to the schools conduct and to order, for example, an apology. This is a very potent power, but at present, there is no single agency responsible for enforcement or follow up of the recommendations made, such as Ofsted. It is therefore difficult to assess whether the decisions are implemented, although we do know anecdotally that SENDIST finds it difficult to enforce their own decisions or offer advice to parents when a responsible body continues to behave in a discriminatory manner.