University of Edinburgh
 

Planning to Improve Access to Education for pupils with Sensory Impairment.

Council Policies and Implementation

Presented in January, 2004

Special Educational Needs and Disability Act

Sheila Riddell, Professor of Inclusion & Diversity, University of Edinburgh

SEN Framework

Basic Discrinimation Duties
Planning duty
Jigsaw of support

Definition of disability

A person has a disability if he or she has a physical or mental impairment which has a substantial and adverse long-term effect on his or her ability to carry out normal day-to-day activities

What are Special Educational Needs?

A child has special education needs if they have a learning difficulty which calls for special educational provision to be made for them.

What are learning difficulties?

A child has a learning difficulty if they:

(a) Have a significant greater difficulty in learning than the majority of children of the same age; or

(b) Have a disability which prevents or hinders the child from making use of educational facilities of a kind generally provided for children of the same age in schools within the area of the LEA

(c) Is under five and falls within the definition at (a) or (b) above or would so if SEN provision was not made for the child.

Local Authorities must:

  • Identify pupils who they think have SEN/ASN which call for them to step in and assess
  • Carry out assessments of pupils they think have SEN/ASN
  • Arrange provision<
  • Keep their arrangements for SEN/ASN under review

How do schools provide for pupils with SEN?

  • Individualised Education Programmes - strategies and targets
  • Monitoring of progress by teachers and learning support staff
  • Different learning materials
  • Extra adult help
  • Aids and Equipment
  • Advice from external support services.

School Education in Scotland

  • Local Authorities are responsible for school education
  • Guidance on education is not based on statue
  • No selection
  • The curriculum is not determined by statue or regulation

Disability discrimination in education

Schools (Chapter 1)

Further and Higher education (Chapter 2)

Miscellaneous (Chapter 3)

What are the duties on schools and local authorities?

Anti-discrimination duties (GB) (Clauses 11-13 and 16)
Planning duty (England & Wales only) (Clauses 14-15)

Who is subject to the anti-discrimination duties?

Duty on schools/LAs (Clauses 11-13)
-The body responsible for a school (the “responsible body”)
Residual duty on education authorities (Clause 16)

To whom are the anti-discrimination duties owed?

  • Disabled pupils
  • Disabled prospective pupils

What do the responsible body’s anti-discrimination duties apply to?
(Clause 11)

  • Admissions
  • Education and associated services provided for, or offered to, pupils at the school - NB: Regulation making power for what is or is not “education” or an “associated service”
  • Exclusions
  • - Permanent or for a fixed period

How should the Disability Code work with the SEN/ASN framework?

  • SEN/ASN framework makes special educational provision to meet individual pupils’ special educational needs.

  • Disability discrimination framework provides protection for pupils with disabilities by preventing discrimination against them at school on grounds of disability

How should the Disability Code work with the SEN Code?

  • Schools familiar with the SEN framework - so work alongside that
  • DRC Code for schools sets new schools duties in the context of SEN framework - where appropriate.

Scotland - Code of Practice

  • Education is devolved function, based on Scottish legislation
  • Separate legal system
  • Discrimination cases heard by Sheriff Court, not Tribunal
  • Separate planning legislation
  • New duties are responsibility of local authorities, except in independent sector

What constitutes “discrimination” against a disabled person? (Clause 12)

  • Less favourable treatment for a reason relating to his disability, or
  • Failure to comply with reasonable adjustments duty, which is to his/her detriment

Reasonable adjustments duty (Clause 13)

  • Covers
    - Admission arrangements
    - Education and associated services provided for, or offered to, pupils at the school
  • Anticipatory duty
  • Trigger: “substantial disadvantage”

Reasonable adjustments duty

• In considering whether a particular adjustment is reasonable, duty to have regard to
- Relevant parts of DRC’s Code
- whether making that adjustment is consistent with compliance with a confidentiality request

Reasonable adjustments duty

Exceptions
- Provision of auxiliary aids and services
- Removal or alteration of physical features
NB. Regulation making powers

Factors

  • The need to maintain academic, musical, sporting and other standards
  • The financial resources available to the responsible body
  • The cost of taking a particular step
  • The extent to which it is practicable to take a particular step
  • The extent to which aids or services will be provided to disabled pupils at the school under Part IV of the Educational Act 1996 or ss.60-65G of the Education (Scotland) Act 1980.
  • Health and safety requirements
  • The interests of other pupils and persons who may be admitted to the school as pupils.

Justification (Clause 12)

For less favourable treatment
- If it is the result of a permitted form of selection (See Clause 25 for definition), or
- If the reason for it is both material to the circumstances of the particular case and substantial

Justification (Clause 12)

For failure to make reasonable adjustments
- If the reason for it is both material to the circumstances of the particular case and substantial

Rights of redress for claims of disability discrimination in schools

In England and Wales:
- Special Educational Needs and Disability Tribunal will hear all claims (Clauses 17 and 18) except:
- Admissions appeal panels will hear admissions cases relating to maintained schools and city academies (Clause 20)
- Exclusions appeal panels will hear permanent exclusions cases relating to maintained schools and city academies (Clause 20)

Rights of redress for claims of disability discrimination in schools

In Scotland - Sheriff Court will hear all claims (Clause 23)

Conclusion

SEN & Disability Act 2001 (Part 4 DDA) - implemented differently in England & Scotland
At time of legislation, SEN frameworks different
Likely to diverge further in future