The Special Educational Needs and Disability Act 2001

EssexCounty Council SENCO Manual 2011

EssexCounty Council

SENand Children with

Additional Needs

An introduction to

The Special Educational Needs and Disability Act 2001

plus

The Equality Act 2010

Information for schools

The Special Educational Needs and Disability Act 2001, which amends the Disability Discrimination Act 1995, carries significant implications for schools and Local Authorities.

There are three parts to the Act, of which two are of particular relevance:-

Part I refers mostly to strengthening the rights of children with statements of special educational need to be educated in mainstream schools. It also requires Local Authorities to offer parent partnership and mediation services. To some extent these measures could be seen as extending the good practice of existing SEN legislation. The Act came into force in January 2002, alongside the revised SEN Code of Practice.

Part II is more significant in that it introduces new rights for disabled people in schools, further and higher education. This became statutory from September 2002. The ultimate aim of this aspect of the legislation is to increase opportunities for disabled people in all educational settings. It placed new duties on schools and Local Authorities not to treat disabled pupils less favourably, without justification, than non-disabled pupils. There is a duty to make ‘reasonable adjustments’ to school policies, practices or procedures so that disabled pupils are not put at a substantial disadvantage in comparison with pupils who are not disabled. Local Authorities have to produce accessibility strategies to improve the accessibility of premises and curriculum over time. Each school has to produce an accessibility plan that is published annually to parents through the prospectus. School accessibility plans not only refer to physical adaptations, service provision or equipment, they necessitate policy and attitude appraisal, and anticipation of future admissions of children with disabilities.

The aim of this legislation is to create within schools, as far as is reasonably possible, a ‘level playing field’ for all children regardless of whether or not they are disabled. Since September 2002 parents have had the right to appeal directly to the SEN and Disability Tribunal for judgements about whether their child has been treated ‘unreasonably’ by a school.

The definition of disability is the same as that given by the Disability Discrimination Act 1995. The DDA defines a disabled person as someone who has

“a physical or mental impairment, which has substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.

Not all disabled children, therefore, will have a special educational need, or a learning difficulty, although a number will.

The following are examples of school practice, which might be subject to challenge:

a father seeks admission to a primary school for his son, who has epilepsy. The school tells him that they cannot take the boy unless he stops having fits

an eleven year old girl is admitted to a secondary school. The school wants her to have all her lessons in a separate room in case she frightens other children with her muscle spasms and her ‘funny noises’

a secondary school with a number of pupils with disabilities fails to negotiate special arrangements for these children in their public examinations

a pupil tells the school secretary that she has diabetes and that she needs to carry biscuits to eat when her blood sugar levels fall. A teacher has no information about her diabetes and refuses to allow pupils to bring food into the class

The Code of Practice contains these and more detailed examples of school practice which may be subject to challenge, whether or not these challenges would be likely to be upheld and what ‘reasonable adjustments’ the schools could have made to redress these situations. All examples are based on real situations.

See SM1/3.16a for Accessibility Plan exemplar and pro forma

The Equality Act 2010 - implications for schools

From October 2010 the Equality Act has streamlined all general anti-discrimination law for private, public and voluntary sector employment and services. The act replaces previous anti-discrimination laws with a single act to make the law simpler and to remove inconsistencies. This makes the law easier for people to understand and comply with. Theact also strengthened protection in some situations.

Discrimination means treating someone less (or more) favourably than a "comparator". It can be direct, indirect or "arising from disability". Harassment (which is one form of discrimination) means violating someone's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Victimisation means discrimination because of a previous complaint.

Previous duties only covered race, gender, disability and community cohesion. The main change for schools is the addition of religion or belief and sexual orientation, and (to a lesser extent) pregnancy and maternity, gender identity and age.

From April 2011 the Act also introduced a single Equality Duty (public sector only) which applies to schools. In respect of all the protected characteristics except age and marriage / civil partnership, this new public sector equality duty will require schools to have due regard to the need to:

(a) eliminate unlawful discrimination, harassment, and victimisation;

(b) advance equality of opportunity; and

Advancing equality of opportunity involves:

(a) removing or minimising disadvantages

(b) taking steps to meet people's needs

Fostering good relations involves:

(a) tackling prejudice, and

(b) promoting understanding.

Schools will be expected to gather and analyse equality information relating to all the protected characteristics, where relevant and proportionate. It is recommended that this includes consulting and involving people from protected groups: pupils, parents, staff, governors, neighbours and trade unions. Ideally these people should to be actively and meaningfully involved and not just consulted after the event. Professional publications and national websites provide a good starting point for informing yourself.

A particular implication for all employers, including schools, is noted on the DfE website:

‘It is now unlawful for employers to ask health-related questions of applicants beforejob offer, unless the questions are specifically related to an intrinsic function of the work. This means that schools should no longer, as a matter of course, require job applicants to complete a generic health questionnaire as part of the application procedure. We are considering the implications of this in relation to existing guidance for schools on establishing fitness and ability to teach (as required by the Health Standards (England) Regulations 2003). In the meantime, schools are advised to review their existing practices to ensurethey are complying with both the Health Standards Regulations and Section 60 of the Equality Act. Schools may decide to ask necessary health questions after job offer. In any case, they should ensure that any health-related questions are targeted, necessary and relevant to the job applied for. ‘

The Equality and Human Rights Commission will have decided exactly what equality information schools need to publish such as:

Raw attainment and attendance data
Data from routine monitoring, e.g. behaviour v ethnicity, use of extended services v disability, staff pay v gender
Pupil, staff and parent surveys
Details of any engagement undertaken with other people you consider to have an interest in advancing equality
Statistics collected by external bodies, such as the Office for National Statistics
Local data, e.g. child poverty (access to internet and transport options); domestic violence statistics
Data about complaints
Data underpinning any equality impact assessments
Community Cohesion contextual information: ethnicity, religion or belief, socio-economic

For further guidance, visit the Equality and Human Rights Commission site.

‘What Equality Law Means for you as an Education Provider- Schools'.

In addition a new model Equality Scheme template 2010 -13 has been produced.

Ref: SM1/3.14