The new code of practice on the Special Education Needs and Disability Rights Act (2001) is not the only one that schools will have to grapple with. The new Act also made major changes to Section 316 of the 1996 Education Act, which deals with the caveats around the placement of children with SEN in mainstream schools.
There will also be a new code on the planning duty that the Act introduced for all LEAs and schools. Together with the Disability Rights Commission code this will herald a fundamental shift in the way SEN will be addressed in the future.
The revision of Section 316 became one of the main points of controversy in Parliament, in what was otherwise a politically bipartisan Act that had been broadly welcomed by the SEN sector. The four caveats laid out in the Act allowed the LEA to refuse a child for a mainstream placement only when four conditions applied: that it was not an efficient use of the LEA's resources; when it was not in the best interests of other children; when it was not the parental choice; and when it was felt not to be in the best interests of the child.
After the consultation period there had effectively been an accommodation between the lobby and Government. The Special Education Consortium, which represents a broad section of disability, parent and children's organisations, had wanted all caveats removed, especially given that Schedule 27 of the same Act contains similar protections. However the Government, nervous about the reaction of the teacher unions to removing the caveat around efficient education, offered to remove the needs of the child and financial constraints from the Act but not the efficient education of other children caveat. Both sides uneasily accepted this compromise. The SEN lobby remains deeply suspicious that the efficient education of other children will be used by less committed or cash-strapped authorities to divert children from mainstream provision.
A further concern is that it creates an assumption that disabled students are more disruptive and so undermines the inclusionist intent of the legislation. The guidance will have to tread a fine line if it is to reassure disability and children's charities on this point while also reassuring teachers that demands in the classroom will be manageable. There will be separate guidance just on this clause to be implemented by September this year.
The Act also introduces an important requirement for strategic planning to increase the accessibility of the school and the curriculum. The latter was a major concession from the Government after concerns that the measure would only cover physical access to buildings. The plan has to anticipate the potential needs of pupils to ensure the school's accessibility. These anticipatory duties will encourage schools to plan for inclusion in a more systematic way. It was made clear during the debate on the Act that this would build on the initiatives of the Access Fund and the asset management programme.
There is a danger that three codes in two years will seem a lot to those who have to implement these measures.
However, many of the changes build on good practice and are supported by real increases in funding. The Act and associated codes will be a major push towards inclusion but recognising that this will have to be delivered in a pragmatic way.
The Act plugs the gap in the Disability Discrimination laws that many disabled children and their parents have waited a long time for. Now it is up to the code to make a workable reality of the law.
Brian Lamb OBE is chair of Special Education Consortium and director of communications for the RNID