ISC/SEN Legal Update 2012
David Wolfe
Topics
1. Draft SEN Bill
2. Equality Act 2010 changes
3. SEN vs disability vs “access
arrangements” (etc)
Draft SEN Bill
Draft SEN Bill
• September 2012 – draft bill
• Autumn 2012 – Education Select
Committee
• January 2013 – bill to parliament
• 2014 – act of parliament
• ‘Autumn 2014’ implementation
Draft SEN Bill
• Replaces Education Act 1996 Part 4
• “Statements of SEN” become “Education and Health
Care Plans”
• Compulsory mediation pre SENDIST
• Children to be able to appeal to SENDIST
• ‘Personal budgets’
• Academy schools to be like maintained schools
• Learning Disability Assessments to disappear with
16-25 year olds now having EHC Plans
EHC Plans
“a plan setting out—
:
(a) the child’’
s or young person’’
s special
educational needs;
(b) the outcomes sought for him or her;
(c) the special educational provision required
by him or her;
(d) any health and social care provision of a
prescribed description
required by him or her.”
Equality Act 2010
The ‘Reasonable Steps’ obligation
You are required to take reasonable
steps to avoid substantial disadvantage
where a provision, criterion or practice
puts disabled pupils at a substantial
disadvantage.
Equality Act 2010
You owe this duty to existing pupils,
applicants and, in limited
circumstances, to disabled former pupils
in relation to the following areas:
– deciding who is offered admission as a pupil
– the provision of education
– access to any benefit, service or facility.
What’s covered
All areas of school life
• Admissions
• Exclusions
• Exams
• Trips
• Classrooms
• Homework
• Plays
• etc
Factors in what is reasonable
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The extent to which support will be provided to the disabled pupil
under Part 4 of the Education Act 1996 (the SEN framework)
The resources of the school and the availability of financial or other
assistance
The financial and other costs of making the adjustment
The extent to which taking any particular step would be effective in
overcoming the substantial disadvantage suffered by a disabled pupil
The practicability of the adjustment
The effect of the disability on the individual
Health and safety requirements
The need to maintain academic, musical, sporting and other standards
The interests of other pupils and prospective pupils.
Change!
What has changed since last term?
Schools and local authorities now have
additional obligations towards disabled
pupils to provide what are called
‘auxiliary aids and services’ to
overcome disadvantage that these
pupils experience in schools.
What sorts of things?
Provide a disabled pupil with:
• a piece of equipment
• assistance from a sign language interpreter, lip-speaker or
deaf–blind communicator
• extra staff assistance
• an electronic or manual note-taking service
• induction loop or infrared broadcast system
• videophones
• audio–visual fire alarms
• readers for people with visual impairments
AAS vs SEN
Many disabled children will have statements of SEN,
and auxiliary aids which are necessary as part of
their SEN provision will be provided through the
statement. In these cases the schools will be under
no obligation to duplicate that support.
The great majority of children with SEN do not have
statements and that will include disabled children
who require auxiliary aids or services to prevent them
being at a substantial disadvantage.
Resources
The Act only obliges schools to make
‘reasonable’ adjustments.
Cost and resources are factors that are taken
into account in determining what is
’reasonable’.
It is important to document carefully any
decisions taken on reasonable adjustments
so that they can be justified to parents and/or
a tribunal.
Can we charge?
Can a school charge disabled pupils
or their parents for the additional
cost of providing auxiliary aids?
No.
Us too?
Does the duty apply to independent
schools?
The duty applies to all schools in
England and Wales irrespective of how
they are funded or managed.
What’s it all about?
school
exams
Close attention
SEN
disability
JCQ
eligible
Disability
A person has a disability if—
(a) they have a physical or mental
impairment, and
(b) the impairment has a substantial
and long-term adverse effect on their
ability to carry out normal day-to-day
activities.
SEN (1)
A child has “special educational needs”
for the purposes of this Act if he has a
learning difficulty which calls for special
educational provision to be made for
him.
SEN (2)
A child has a “learning difficulty” if—
(a) he has a significantly greater difficulty in
learning than the majority of children of his
age,
(b) he has a disability which either prevents
or hinders him from making use of
educational facilities of a kind generally
provided for children of his age in schools
within the area of the local authority.
SEN(3)
“special educational provision” means—
... educational provision which is
additional to, or otherwise different from,
the educational provision made
generally for children of his age in
schools maintained by the local
authority (other than special schools)
So what?
• Not all children with SEN are disabled
– Short term conditions
• Not all children with a disability have SEN
– Not all disabilities amount to a ‘learning
difficulty’ or call for SEP
– Diabetes, HIV, cancer, etc
JCQ criteria
The JCQ criteria include things arising from
disability, but go well beyond eg:
– Students whose first language is not English, Irish
or Welsh who have lived in the UK for less than 2
years
– Children subject to bereavement or domestic crisis
– Children participating in international sporting
events
JCQ criteria
Even when dealing with things arising
from disability JCQ use crude proxy
tests (eg speed of processing standard
score of 84 or less)
So what?
JCQ eligibility ≠ disability
So what?
SEN
disability
JCQ
eligible
So what?
exams ≠ school
So what?
school
exams
So what?
Reasonable adjustments to
school
exams
remove substantial disadvantage
faced by disabled pupils
Access arrangements arising from
JCQ criteria
JCQ says:
“Access arrangements are agreed before an assessment. They
allow candidates/learners with special educational needs,
disabilities or temporary injuries to access the assessment.
Access arrangements allow candidates/learners to show what
they know and can do without changing the demands of the
assessment: for example, a reader, a scribe and a word
processor.
The intention behind many access arrangements is to meet the
particular needs of an individual disabled candidate without
affecting the integrity of the assessment. In this way awarding
bodies will comply with the duty under the Equality Act 2010* to
make ‘reasonable adjustments’.”
So what?
• If on JCQ criteria someone is eligible for
exam arrangements, then you should
make those changes.
• But you might need to make different or
additional exam changes for someone
who is disabled (as a ‘reasonable
adjustment’) – discuss with exam board
So what?
Just because a pupil might be eligible
(per JCQ) for exam adjustments does
not mean they are necessarily disabled,
much less that reasonable adjustments
are required (or conversely not
required) in exams or any where else.
So what?
• You may need to make reasonable
adjustments for a disabled pupil across
all or any areas of school life
• That might, but need not, include exam
arrangements
So what?
• Just because someone is JCQ eligible
that does not mean they need
reasonable adjustments outside exams
• Conversely, just because someone is
not JCQ eligible it does not mean that
they might not be disabled and need
reasonable adjustments in other
aspects of school life
Think
• Disability – all of school life
• JCQ criteria – exams only
Think about the individual pupil and
their particular needs.
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