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Human Rights, The Equality Act and Inclusive Education: The 12 changes the #SENDReview Green Paper needs for a paradigm shift

Richard Rieser is a disability campaigner and expert in inclusion. This article is his view of how the Green Paper interplays with equality, human rights and inclusive education

The SEND Review Green Paper is ideological in the sense it does not address the Government’s views and structures by which they have created the crisis in the English SEND state education system. Instead, these are taken as a given and not questioned. The focus is placed on the financial outcomes of this failed thinking and seeks to blame parents and carers who are using the current, ill-thought-out system, to secure an education that meets the needs of their disabled children and young people and those with special educational needs. 

In this endeavour, the Government are paying scant, if any, attention to the Equality Act (2010) and to their international commitments to increasing inclusive education that they have made through ratifying international treaties, in particular the United Nations Convention on the Rights of Persons with Disabilities (Article 24).

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England's education for disabled children uses an outdated model

In the UK, we widely use the Social Model, and we call ourselves Disabled People, as the Government acknowledges we are disabled by barriers that in interaction with our impairments, lead to us being disabled by society. ‘Social Model’ thinking, if diluted, is accepted as applying to disabled adults e.g. Disability Strategy

“...dismantling the barriers and attitudes that hold disabled people back so they can fulfil their personal potential and the promise of every day”.

Disability Stratety (Foreword)

However, when it comes to disabled children and young people in education, the focus reverts to a ‘Medical Model’ approach, where the problem is largely in the child/young person and what they cannot do. The 2014 Children and Families Act Part 3, has no link to the above rights’ based requirements. The SEND Code of Practice acknowledged these rights-based points in Chapter 1, and then does not use this approach in subsequent chapters reverting, almost entirely, to a medical model approach, apart from some references in preparing for adulthood.

This then has been translated by local authorities in England into a ‘Medical’ deficit model, as a way of distributing and rationing heavily demanded Higher Needs Funding. As the United Nations make clear, implementing the UNCRPD which the UK Government ratified in 2009, involves a paradigm shift.

Shifting the paradigm of views of disability

“Persons with disabilities as subjects of rights, not objects of charity. The Convention takes to a new height the movement from the treatment of persons with disabilities as “objects” of charity, medical treatment and social protection towards viewing persons with disabilities as “subjects” with rights who are capable of claiming those rights and making decisions for their lives based on their free and informed consent as well as being active members of society. The Convention gives universal recognition to the dignity of persons with disabilities.”

UNCRPD

According to the UNCRPD “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” 

As can be seen from Figure 1 the medical and social model have a  very different focus.

The two different approaches are made clear in this Figure 2  applying them to the education system  developed by myself and Micheline Mason in the 1990s.

MEDICAL MODEL THINKINGSOCIAL MODEL THINKING
Child is faultyChild is Valued
DiagnosisStrengths and Needs defined by self and others
LabellingIdentify Barriers and develop solutions 
Impairment becomes focus of attentionOutcome-based programme designed
Assessment, monitoring, programmes of therapy imposed Resources are made available to Ordinary services
Segregation and alternative servicesTraining for Parents and Professionals
Ordinary Needs put on holdRelationships nurtured
Re-entry if normal enoughOrPermanent ExclusionDiversity Welcomed, child is included
Society remains unchangedSociety Evolves
Figure 2: Adapted from Micheline Mason 1994, R.Rieser 2000

Barriers to inclusion

Over the years working with hundreds of schools, World of Inclusion has identified the key barriers to inclusive education for disabled learners in mainstream schools, based on a human rights approach.

school barriers to inclusion
Figure 3

There are also barriers identified beyond the school which need tackling to develop an inclusive system.

systemic barriers to inclusion
Figure 4

What does the Equality Act 2010 expect for education?

The Equality Act 2010, which the Green Paper is silent about, requires all schools and education providers to make reasonable adjustments. These are anticipatory so they need to permeate all school policies such as admissions, trips, curriculum, assessment and many others.

The adjustments must be put in place before any SEND assessments are carried out and the child/young person and their family are the experts on what these adjustments should be and space must be created to listen to them.

The Equality Act Public Sector Duty (Section 149) requires the promotion of disability equality by the Trust or Governors and the elimination of bullying and discrimination. To understand what this means, all schools and education providers need Disability Equality Training and to have clear policies that have due regard to these requirements. There is also an Access Planning Duty on all schools in the Act (Sec. 88 Schedule 10). This applies to the curriculum, environment and language in different formats.

Whatever the outcome of the Green Paper consultation, the Government needs to commit to ensuring current legislation is implemented. Two good ways to do this are:

  1. Make the Local Government Ombudsman able to investigate breeches of Equality Legislation in all education providers including academies.  
  2. Create an Equality Service under the Equality and Human Rights Commission, with similar powers to the Health and Safety at Work Inspectorate, to issue prohibition notices, taking the onus off the individual to enforce.

Government plans and the Equality Act

Instead of the above, the Government are wedded to ‘Good Multi-Academy Trusts’ and ‘Excellent Teachers’ to 'level up' GCSEs (4 to 5) and all KS2s, achieving targets from 65% to 90% by 2030. This is the wrong solution and the wrong target!

To help advise them, a Tory think tank, The Education Endowment Foundation, which, in my view, produces non-peer-reviewed and suspect research, will further displace university education departments.

There are some small improvements, meaningful mediation, possible national standards of provision, and Early Years improvements. However, there is no coherent professional development for all staff linked to upskilling them to deliver inclusive education.

The Green Paper uses the mantra of mainstream schools being more inclusive without understanding what this requires, as defined by the UN CRPD Committee Gen. Comment No4, Para. 11 (below) makes clear, this involves a systematic restructuring of school education. Instead the Green Paper only scratches the surface and because of a refusal to address deep underlying barriers created by Government thinking, is unlikely to succeed.

“Inclusion involves a process of systemic reform embodying changes and modifications in content, teaching methods, approaches, structures and strategies in education to overcome barriers with a vision serving to provide all students of the relevant age range with an equitable and participatory learning experience and environment that best corresponds to their requirements and preferences. Placing students with disabilities within mainstream classes without accompanying structural changes to, for example, organisation, curriculum and teaching and learning strategies, does not constitute inclusion. Furthermore, integration does not automatically guarantee the transition from segregation to inclusion”. 

UN CRPD Committee Gen. Comment No4, Para. 11

The current model is detrimental to all

The knowledge-based, prescriptive, narrowed curriculum provides no room for an assessment system with added value. It marketises standard testing, which increases widening gaps in achievement, and gives insufficient breadth and status for alternative forms of accreditation. This leads to high exclusion, off-rolling, and mental health issues for both staff and pupils. 

Everything you need to understand the SEND Review Green Paper, including an easy way to answer the consultation

No evidence that MATs are best

The Schools White Paper and Green Paper give no reliable evidence that Multi-Academy Trusts are the solution to the current widespread issues outlined above. There is evidence that academies fail some students with SEND in that they identify fewer, reduce their numbers compared to community schools, and exclude them at a higher rate. Local authorities that have statutory responsibility for all disabled pupils/students and those with SEN, must be given much more accountable power. This is the only fair way to get the right support to every SEND learner.

Those on SEN Support miss out

In addition, the notional £6000 that schools receive per pupil for school-based SEND is not based on the number of such children, but on a range of general indicators. It's not guaranteed (ring-fenced) to be spent on special educational needs. Headteachers and Multi-Academy Trusts faced with rising costs and real-term budget cuts over the last 12 years have cut deep into provision for disabled learners and those with SEN who don't t have the protection of a statutory EHC Plan.

Teaching assistants, specialist teachers, support workers and mentors have all been massively reduced in attempts to keep teachers in front of classes. LAs have increasingly given up on providing specialist teachers and educational psychologists, other than carrying out their statutory role, leaving little time for advice and support in developing innovative inclusive practice. 

The recent data on EHC plans in the last year are yet another clear indication that the SEND system is not working. Overall the number of Education Health and Care Plans has grown by 10% overall in the last year to January 2022. The fastest growth in mainstream provision is 11% and in special schools by 7%. More and more parents are seeking the statutory protection of an EHCP, as inclusive education is not working in mainstream schools. This phenomenal growth is partly accounted for by the expansion to age 16-25 (107,408 since 2015). But the rise from 175,233 in 2017 to 473,255 in 2022, a more than doubling for compulsory school-age children, tells its own story.

Equality laws are not valued

In 2010, the Government introduced the Academies Act, which was meant to cut LAs out of education management. In their haste, and showing how little they valued the Equality Act and developing inclusive education, there was no mention in the original Bill. Lobby groups had to amend it and the interpretation of ‘broadly similar’ to community schools has left much room for misinterpretation and a lack of emphasis amongst many Multi-Academy Trusts on a human rights’ based approach to inclusion.

In England, for inclusive education and disability equality to develop, the Government needs to recognise the collateral damage is too high with their current league table-led, narrowed curriculum approach to disabled children and those with special educational needs.

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What needs to change in the Green Paper

We need to encourage the following changes in our response to the Green Paper:

  1. Full government funding: Meet the growth in students with SEND on EHC Plans and school support – ring-fenced so these students benefit directly from the current notional £6000.
  2. Develop government policies in line with Article 24 of UNCRPD: Explicitly support mainstream schools in developing inclusive education instead of omitting it from policy.
  3. Stop building free special schools: An injection of resources to develop and increase mainstream provision to halt the large increase in placements in special schools, phasing out the use of expensive independent special schools by LAs.
  4. Improve training on SEND and inclusion: Initial and continuing professional development with mandatory in-service whole staff training and disability equality and human rights training for all.
  5. Reform the Curriculum and Assessment system: Build a flexible, child friendly system, including (new) non-exam-based accreditation, including creative, vocational, interpersonal and social skills, and moderated teacher assessments, which have worked during lockdown[i].
  6. End exclusions and ban zero tolerance behaviour policies (for instance, Behaviour Hubs): Empower Disabled students, end disablist bullying and introduce/enhance peer   support/collaboration and buddy systems.
  7. Fully implement the School Access Planning Duty within five years, by which time all schools must be accessible.
  8. Empower all Disabled children and parents to know and exercise their rights to fully resourced inclusive education, requiring an inclusive ethos and strong person-centred approach.
  9. Create policy to ensure a more relaxed and stress-free environment in schools: Including mental health counsellor in every school and increased funding for Child Adolescent Mental Health Services (CAMHS).
  10. Reasonable Adjustments: All schools to be equipped to make reasonable adjustments for disabled learners whenever they need them. The Government must enforce the public duty to Disability Equality and fully implement Reasonable Adjustments emphasising their anticipatory nature throughout the education system.
  11. Fund statutory inclusion teams: LAs continue to have statutory responsibility for EHC Plans and for identifying the needs of all disabled children and young people living in their area. Therefore, they need to be funded to provide statutory inclusion support teams of specialist teachers and educational psychologists, with the powers to enter all schools to provide advice and support for staff and those disabled learners for whom they have responsibility.
  12. Initiate a system of independent scrutiny of schools' implementation of the Equality Act with a system of regulation to ensure implementation. 

References

  1. A selection of recommended inclusive children’s books and resources may be found at www.worldofinclusion.com/res/qca/Resources.doc. Much more material can be found at the Resource pages of UK Disability History Month, www.ukdhm.org.

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