David Ruebain outlines the SEN and Disability Bill
Since the Education Act 1981 was brought into force, children with special educational needs have seen their rights evolving to a formidable extent. In particular, the law has developed to require at least the majority children to be "mainstreamed". In tandem with this, disabled people have seen a transformation in understanding of issues which directly concern them, and one consequence of this has been the Disability Discrimination Act 1995. However, until now, education has been expressly excluded from anti-discrimination legislation for disabled people, instead being dealt with through the statutory framework governing provision for children and students with special educational needs and learning difficulties.
Last December, the Government introduced the Special Educational Needs and Disability Bill into the House of Lords. That Bill has now been introduced into the House of Commons for its second reading and the anticipation is that it will receive royal assent before the next election. The Bill, as it currently stands, makes significant changes to education and disability discrimination law in a number of areas and, most critically, introduces (albeit limited) anti-discrimination provision for disabled pupils and students.
First, the Bill strengthens rights for parents to choose mainstream schools for their children. Currently, the interlocking provisions of Section 316 of, and Schedule 27 to, the Education Act 1996 provides that parents of a child with special educational needs can require that that child be educated in an ordinary school, unless the school cannot meet the child's needs, other children would be adversely affected or the presence of the child at the school would constitute an inefficient use of resources. The Bill drops two of those restrictions so as to permit "compulsory segregation" only where it can be established that the education of other children would be adversely affected. There are also consequential extensions of services to provide parents with advice and information and a means f resolving disputes with schools and local education authorities.
The Bill also establishes time limits requiring local education authorities to comply with orders of the Special Educational Needs Tribunal and introduces a new obligation to inform parents where they are making special educational provision for a child. It also allows schools to request a statutory assessment. The Special Educational Needs Tribunal will become the Special Educational Needs and Disability Tribunal, and its role will be extended to deal with allegations of discrimination. This will, no doubt, prove to be a challenging experience for many involved, although the Bill does not go so far as to permit tribunals to award children monetary compensation, in those circumstances where discrimination has been established. How the tribunal's dual role - of determining provision for children with special educational needs and also determining complaints of discrimination - will operate has yet to be seen but there is no doubt that these changes will herald a further advance in rights of disabled children and, consequently, further reconsideration in the practice operated by many schools and other educational services.
For the first time, further and higher education colleges will have new obligations to not discriminate against disabled students and in this case, if appropriate, monetary compensation will be available.
Finally, the recently established Disability Rights Commission will have extended functions in respect of this new legislation in order that it may assist in provision of education and, ultimately, enforcement of the provisions.
There are numerous examples of expert, groundbreaking and transforming practice in schools and colleges. But only the foolhardy will take the view that no reconsideration of provision, and consequent training of staff, will be required in order to ensure effective compliance.
David Ruebain is a specialist lawyer, writer and trainer in the field of the law and practice relating to SEN and disability discrimination with Levenes Solicitors