discrimination, Guest Posts, SEND Review, special needs

Disability, the Equality Act and the SEND Review

Disability campaigner Richard Rieser of World of Inclusion discusses the vital importance for the SEND Review to frame itself around disability in the Equality Act

On the face of it, the 2015 SEND Code of Practice makes it clear in both the introduction and in chapter one, that education providers have a statutory duty to implement the Equality Act 2010 alongside the children and Families Act Part 3. In reality, this has not been happening and it is one of the reasons we have a crisis in SEND provision. To refresh our memories this is what the Code of Practice says:

Disabled children and young people


xviii. Many children and young people who have SEN may have a disability under the Equality Act 2010 – that is ‘…a physical or mental impairment which has a long-term and substantial adverse effect on their ability to carry out normal day-to-day activities’. This definition provides a relatively low threshold and includes more children than many realise: ‘long-term’ is defined as ‘a year or more’ and ‘substantial’ is defined as ‘more than minor or trivial’. This definition includes sensory impairments such as those affecting sight or hearing, and long-term health conditions such as asthma, diabetes, epilepsy, and cancer. Children and young people with such conditions do not necessarily have SEN, but there is a significant overlap between disabled children and young people and those with SEN. Where a disabled child or young person requires special educational provision they will also be covered by the SEN definition. 

xix. The Equality Act 2010 sets out the legal obligations that schools, early years providers, post-16 institutions, local authorities and others have towards disabled children and young people: 

• They must not directly or indirectly discriminate against, harass or victimise disabled children and young people

• They must not discriminate for a reason arising in consequence of a child or young person’s disability

• They must make reasonable adjustments, including the provision of auxiliary aids and services, to ensure that disabled children and young people are not at a substantial disadvantage compared with their peers. This duty is anticipatory – it requires thought to be given in advance to what disabled children and young people might require and what adjustments might need to be made to prevent that disadvantage 

• Public bodies, including further education institutions, local authorities, maintained schools, maintained nursery schools, academies and free schools are covered by the public sector equality duty and, when carrying out their functions, must have regard to the need to eliminate discrimination, promote equality of opportunity and foster good relations between disabled and nondisabled children and young people.

 Public bodies also have specific duties under the public sector equality duty and must publish information to demonstrate their compliance with this general duty and must prepare and publish objectives to achieve the core aims of the general duty. Objectives must be specific and measurable. The general duty also applies to bodies that are not public bodies but that carry out public functions. Such bodies include providers of relevant early years education, non-maintained special schools, independent specialist providers and others making provision that is funded from the public purse.

 xx. The duties cover discrimination in the provision of services and the provision of education, including admissions and exclusions. All providers must make reasonable adjustments to procedures, criteria and practices and by the provision of auxiliary aids and services. Most providers must also make reasonable adjustments by making physical alterations. Schools and local authority education functions are not covered by this last duty, but they must publish accessibility plans (and local authorities, accessibility strategies) setting out how they plan to increase access for disabled pupils to the curriculum, the physical environment and to information. 

xxi. School governing bodies and proprietors must also publish information about the arrangements for the admission of disabled children, the steps taken to prevent disabled children being treated less favourably than others, the facilities provided to assist access of disabled children, and their accessibility plans.

xxii. Where a child or young person is covered by SEN and disability legislation, reasonable adjustments and access arrangements should be considered as part of SEN planning and review. Where school governors are publishing information about their arrangements for disabled children and young people, this should be brought together with the information required under the Children and Families Act 2014”

SEND Code of Practice 2015, p17-18. (My highlighting in bold)

Why have these legal provisions been so ineffective?

Any child or young person presenting with SEND is also likely to be disabled under the Equality Act definition.

  • Do they have a physical or mental impairment?  
  • Have they been presenting with difficulties that are more than minor or trivial that adversely affect their ability to carry out normal activities for 12 months or more?

To be on SEN Support, the child should be passing through several cycles of ‘Assess, Plan, Do, Review’. These are likely to take three terms (12 months). In addition, it is worth remembering that in the DWP Guidance on the definition to identify if a person is disabled, we must discount the effects of ‘medication, aids or support’(B12).

The two approaches to SEN and Equality come from different perspectives and these are often in contradiction.

Special Educational Needs is based on assessing what the child or young person cannot do. They are in deficit, so they need to be 'fixed' or 'supported' to make them as ‘normal’ as possible. 

whereas

Disability is a protected characteristic under the Equality Act. A young person who identifies, or is thought to be, disabled is owed a human rights duty

  • not to be discriminated against,
  • not to be harassed (bullied) and
  • to benefit from reasonable adjustments. One is anticipatory and one is specific. The anticipatory includes policies such as behaviour, assessment or trips and specific to their needs, such as position in classroom or provision of handouts accessible to them. Failure to consider and or make these adjustments is disability discrimination.

Disability Discrimination and the Equality Act in schools

Since 2002, it has been possible to bring a case of disability discrimination in school to SENDIST (First Tier Tribunal) and for early years and post-school, to the county court. Very few cases have been heard. However, many SEN cases can demonstrate discrimination on grounds of disability by the school. There appears to be a reluctance by the Tribunal to hold joint SEN /disability discrimination cases.

But the main reason parents do not apply on grounds of disability is they do not see anything to be gained, whereas, in SEN they are getting the provision they think their child needs. If there was to be a fine, as there is for race and sex discrimination cases, providing recompense for the ‘wrong done’ to the disabled child or young person, then it is very likely that there would be much greater demand for disability cases and educational establishments would take training and implementation much more seriously.

Ofsted does not seem to examine the establishments’ adherence to the public sector duty to promote disability equality. Nor does it ask for or examine school Accessibility Plans. Therefore, schools are not generally held accountable for their widespread failures to implement these legal requirements and the subsequent failure to have schools that address the barriers disabled children and young people face, often on a daily basis

The importance of the social model of disability for the SEND Review

Behind all of these shortcomings is a failure by government to pay more than lip service to a human rights/social model approach to disability, in line with their international commitments under the UN Convention on the Rights of Persons with Disabilities and the UN Sustainable Development Goals.

Instead, it appears to suit their purposes in encouraging academisation, narrowing the curriculum and maintaining high stakes testing, all of which have a disproportionately negative impact on disabled children and young people. We know from examples around the world that policies that encourage inclusion work. These operate from a child-centred approach that will benefit all children and young people in their learning and acceptance of difference. 

There seem to be signs emerging from the SEND Review, belatedly back on track, that there will be more emphasis on a social model approach and reasonable adjustments to make many more of our schools habitable for disabled children and young people. But even if this is to be the delayed--and welcome--direction, there are no quick fixes.

Some of the measures mentioned here will need to be implemented and the accountability framework will need to be broadened to include the academic and social progress of all children and young people. This will require long term planning, funding and training for local inclusive provision, capable of meeting the rights and needs of a far wider range of disabled young people.

In the long run, however, investing in and taking these actions will ultimately reduce the need for parents to seek other means of meeting their disabled child’s needs. In turn, this will slowly reduce the funding pressure for specialist and alternative provision because schools will naturally be more inclusive places for children to learn.

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Richard Rieser
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