The Alliance for Inclusive Education’s
submission to the Lords Select
Committee inquiry on the Equality Act
and Disability
http://www.parliament.uk/business/committees/committees-a-z/lordsselect/equality-act-2010-and-disability/news-parliament-2015/call-forevidence/
Background: Alliance for Inclusive Education
The Alliance for Inclusive Education (ALLFIE) is a national campaigning and
information-sharing network led by disabled people. ALLFIE campaigns for all
disabled people to have the human and civil right to access and be supported in
mainstream education. ALLFIE believes that the whole education experience should
be inclusive of disabled learners, both inside and outside the classroom and lecture
rooms. Disabled and non-disabled learners’ learning together creates opportunities
for the building of relationships and the creation of an inclusive society that
welcomes everyone. ALLFIE’s response is focused on the education provisions of
the Equality Act. Lack of definition of what is meant by equality for and inclusion of
disabled students in mainstream education, exclusion and segregation in education
is not explicitly made unlawful, unreasonable adjustments and public sector equality
duty is inadequate.
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Inclusive Education - current state of affairs
The Department for Education’s own statistics have shown a decline of disabled
children and young people attending mainstream schools and related resourced
provision. The number of pupils with Special Educational Needs (SEN) in England
decreased from around 1.62 million (19.8 per cent of) pupils in 2011/12 to 1.55
million (18.7 per cent) in 2012/13. The number of pupils with statements of special
educational need increased slightly from 226,125 pupils in 2011/12 to 229,390 pupils
in 2012/13- 3,275. Those disabled children with what can be considered a high level
of SEN, can be assessed by their Local Authority for an Education Health & Care
Plan (previously known as Statement of SEN) at the request of parents or the
school, which is a legally binding document setting out the types and levels of
support required to ensure the disabled child with SEN can access education and
support services. Numbers in special schools in England since the adoption of the
UNCRPD, which the UK Government played an important part in framing, have risen
at an accelerating rate: 2006 - 89,390, 2007 - 91,750, 2008 -91,380, 2009 - 92,270,
2010 -93,220, 2011- 94,275 ,2012 - 95,915, 2013 - 98,595. Over the same period
the number of special schools reduced by 33, but the number of pupils each school
took increased. In addition pupils with SEN statements/EHCPs also increasingly
attend Pupil Referral Units (for excluded students many of whom have behaviour
difficulties arising from impairment) and Independent schools (fee paying schools
where the Local Authority pays the fees) . This has risen from 5,458 in 1994, to
11,315 in 2008 to 12,895 in 2013. Where pupils with SEN statements/EHCPs go to
school has also changed towards fewer attending mainstream schools. From a high
point of 60.1% in 2001 to 56.7% in 2008 down to 53% in 2013. These figures do not
reflect the true extent to which segregated education prevails within mainstream
education settings where disabled pupils and students are enrolled onto segregated
courses or spend the majority of their time in SEN units.
QUESTION 1 Has the Equality Act 2010 achieved the aim of strengthening and
harmonising disability discrimination law? What has been the effect of
disability now being one of nine protected characteristics?
The Equality Act 2010 has proved to be a very important piece of legislation that, for
the first time ever, has framed disabled people’s access to mainstream education
within a civil rights context. However, in practice the EA2010 has often been
ineffective in achieving the stated aim of promoting equality in mainstream education
for all disabled students. This is because the EA2010 fails to provide a strong
framework of inclusive principles within the meaning of equality which can also be
used to effectively guide education legislation. Currently there is no legal definition
on what constitutes equality for disabled students.
Without a clear legal definition, some more innovative education providers have used
the development of inclusive practice as a mechanism for increasing levels of
equality:
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“Inclusive’ at Blackburn College is simply that we see every person as a
student first and then we look at the support that student might require to
achieve their goals. This is undertaken without a discrete or segregated
curriculum, the focus is on how we provide the diversity of support required by
the person.” (Inclusion Now Autumn 2014)
In contrast, some Colleges such as Bromley College of Further and Higher
Education have a much more restrictive view on equality for some disabled students
with /without SEN. The college provides a separate area and courses for disabled
learners with learning difficulties. Whilst all students are welcomed to attend the
college, once in, disabled learners are segregated from their non-disabled peers.
In 2013 we opened the Nido Volans Centre, a specialist area for students with
learning difficulties and disabilities. The Centre houses a training kitchen and
restaurant, state-of-the-art ICT facilities, a media suite, a studio flat for
independent living, a manufacturing workshop, horticultural facilities and a
performance space..(Bromley College of FE and HE website)
The ongoing problem is that achieving equality can be misinterpreted to mean
segregation for disabled students both within mainstream education and within the
wider education system. ,
M is a 13 year young disabled person living with his family in Hounslow. M
has Special Educational Needs. He and his family want him to be included in
a local mainstream secondary school … Local Authority have registered M,
with a local special school “(Parent)
The reality and the fear of segregation of disabled students has been exacerbated by
the Children and Families Act (2014) because the EA2010 provides no clear
principles that equality means inclusivity to be realised. Parents seeking a formal
‘disability’ diagnosis (falling under the EA 2010 clause 6 disability definition) for their
child is often required to secure a legal entitlement to SEN support. By using the
Education, Health & Care assessment and planning route a disabled child loses
his/her right to mainstream education (under the ’presumption of mainstream
education’ principle) as the Local Authority (LA) can name a special school
placement where it considers a mainstream placement will have a detrimental impact
on the nondisabled pupils/students. This is illustrated by the experience of this
parent.
our child with severe learning difficulties and so has a full statement. She had
been in a mainstream nursery where we lived before and would have moved
into a mainstream primary school if we’d remained in the county. After the
move the new LA would only offer a special school placement.
The problem is that disability-related segregation is not treated as less favourable
treatment under the Equality Act 2010. However under Clause 13 s (5) of the
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EA2010, race related segregation is deemed to be considered as less favourable
treatment and is therefore treated as unlawful race related discrimination. Therefore
the situation for disabled pupils/students is much more precarious as highlighted by
the Joint Committee on Human Rights in their report - Legislative Scrutiny: Children
and Families Bill; Energy Bill Third Report of Session 2013–14 l
The provision being re-enacted in clause 33 of the Bill has been the subject to
considerable litigation before the Special Educational Needs and Disability
Tribunal, and on appeal to the Upper Tribunal, in which the issue has been
whether schools have done enough before refusing a placement to a child
with special educational needs on the basis that it would be incompatible with
the provision of efficient education for others. The frequency of such litigation
about the presumption in favour of mainstream education suggests that the
current state of the law and guidance leaves considerable scope for
uncertainty in practice about the circumstances in which a child with SEN
whose parents wish them to be educated in a mainstream school can be
denied such a place and educated instead in a special school. If scope for
such uncertainty exists, the UK’s obligation under Article 24 UNCRPD, to take
steps to increase access to mainstream education for people with disabilities,
might require the Government to remove the uncertainty by clarifying the law
and/or the relevant guidance...
The Joint Committee on Human Rights’ concerns are borne out by the real life
experiences of parents of disabled children. The consequences of the EA 2010’s
inability to prohibit segregation of disabled students in the EA2010 cannot be
underestimated as this parent says:
Since attending a special school my autistic son has regressed intellectually
and has now developed mental health issues.
This parent’s concerns are echoed by Equality & Human Rights Commission “Out in
the Open – tackling disability-related harassment” report findings:
The Government made the point that quality of provision rather than setting is
important. However, the Commission believes that setting may also be
important and that separating disabled children from their peers at an early
stage may have a long-term impact.
The effectiveness of the Equality Act 2010 diminishes if there is education legislation
that clearly places disabled students at a substantial disadvantage when they are
seeking a diagnosis and/or appropriate support otherwise they are at risk of being
placed into segregated education. If disabled people are going to experience full
equality and inclusion within the education system the Equality Act must be
amended so that clause 13 section 5 makes it clear that segregating disabled people
from their non-disabled peers is also unlawful.
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The Equality Act 2010 falls short on protecting disabled students not only from being
segregated, but also from mainstream education exclusions. This may happen when
disabled pupils/students are excluded from mainstream education, but have not
been placed in segregated education. It is estimated that pupils with a statement of
Special Educational Needs (SEN) are almost seven times more likely to receive a
permanent exclusion than pupils with no SEN, and were nine times more likely to
receive a fixed period exclusion. Pupils are usually excluded because of their
behaviour even though it is related to their impairment / health condition. The
Independent Parent Special Education Advice (IPSEA) observed that:
the [EA210] Act is falling short in affording some children protection when they
are deemed to have an ‘excluded condition’. An excluded condition is a
condition of a prescribed description which regulations provide is to be treated
as not amounting to an impairment for the purpose of the Act. By regulation
4(1)(c) of the Equality Act 2010 (Disability) Regulations 2010 (SI 2010
No.2128) “a tendency to physical … abuse of other persons” is an excluded
condition. We have seen an increase on the number of Responsible Bodies
relying on Regulation 4 (‘tendency to physical abuse’) to rebut claims of
discrimination. Many children with SEN also have associated behaviour
problems. It is very common in some conditions such as autism that children
will exhibit behaviour which would also present as an excluded condition.
We share IPSEA’s concerns that the regulation must be amended to exclude
disabled students with appropriate diagnosis. We are concerned that education
providers wanting to exclude disabled students can easily rely on EA 2010 reg 4 as
there is no requirement for an education provider to make reasonable adjustments if
its use is to prevent or reduce a disabled child’s exhibiting behaviour such as
physical abuse. The EA2010 Regulation 4 allows education providers to sidestep the
law when it comes to disability-related discrimination which is hugely damaging for
the equality and inclusion of disabled pupils/students.
QUESTION 3: Are the reasonable adjustment duties known and understood by
disabled people, employers, service providers and others who have duties
under them? How does this apply in the specific cases of public transport,
taxis, education and access to sports grounds?
Simply not discriminating against disabled students will not promote equality for
disabled students. Treating disabled and non-disabled students in the same manner
does not mean the same outcome is achieved. So quite rightly, the EA2010 must
have provisions in place that require education providers and policy makers to make
alternative arrangements so that disabled students can be treated equally. When
education providers make good reasonable adjustments, disabled students are more
likely to feel they are being supported within mainstream education settings. .
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EA2010’s anticipatory duties require education providers to pre-empt and plan
strategically for how they will meet the individual requirements for disabled students.
Strategic planning is key to ensuring that providers can meet those requirements.
By incorporating accessibility standards into the estates project design
software, the university hopes to eliminate the need to carry out costly ad hoc
alterations. Part of this programme has seen the development of assistive
technology rooms in two of the libraries, with the aims of reducing the need for
reasonable adjustments and developing areas of disability awareness and
expertise among staff (Hertfordshire University)
Anticipatory duties, if done well and incorporated into a strategic planning process,
will have the necessary flexibility so that a range of access requirements can be
accommodated. However, if there isn’t the necessary flexibility, an education
provider will struggle to provide support for more person centred requirements.
I initially started by going through my education support office to get my
assistance, however I realised that if I took over the responsibility of paying
then, by eliminating the admin charges, I would be able to pay for more hours.
Once I had taken over the responsibility, the quality of my support improved,
as the recruiting and advertising I did was specific to my requirements.
(Disabled student)
What constitutes a ‘reasonable adjustment’ is not legally defined within the Equality
Act 2010 even though there is technical guidance published by the Equality &
Human Rights Commission. What constitutes ‘reasonable’ will also vary between
different types of education providers as highlighted by the following student in
higher education. Further the interpretation of what is considered to be ‘substantially
disadvantaged’ in comparison with non-disabled peers in mainstream education may
vary between education providers. This disabled student says
I have been unlawfully discriminated against by a City University after having
to spend my entire first year arguing unsuccessfully for the simple but vital
reasonable adjustments I had previously been given throughout school and
college.
Some adjustments can be viewed differently by different education providers
Disabled students with the same access requirements can be treated very differently
by two educational institutions of a similar nature.
The new maintained primary school has a wonderful inclusive ethos. Parents
are regularly consulted on their child's progress, and offered a wonderful
range of support from the staff in school, and those in the local authority who
work between several schools. We have benefitted enormously from multiagency support - all of which we should have been helped with while my
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children attended the local academy, but nothing was offered. (Parent of a
child with SEN)
As a consequence of the EA2010’s failure to address disability-related segregation,
the right for disabled students to be included in mainstream education will always be
a lottery as there is no duty to make all adjustments, not just those that are
considered to be ‘reasonable’. With increasing reductions in education-related
budgets, what would previously have been considered as reasonable adjustments
may no longer be the case. We are concerned that with increasing pressures being
placed on education providers’ budgets, there will be greater pressure to purchase
reasonable adjustments in bulk, taking less account of individuals’ needs and
preferences. The EA2010 allows this by allowing education providers and the courts
to be required to consider what adjustments are reasonable taking into account the
institution’s financial and personnel resources. This is a significant weakness in the
Equality Act 2010 because it allows cost to be a factor in determining what a
disabled pupil/student can expect in terms of having their access requirements met.
QUESTION 4: Should the law be more explicit on what constitutes a
reasonable adjustment? If so in what way?
Yes, but there should be provision in place to allow for less frequent or unique types
of reasonable adjustments required to aid the participation of disabled students in
mainstream education.
QUESTION 2 : Are there gaps in the law on disability and equality not covered
by the Equality Act 2010 or other legislation?
Disabled students’ access to mainstream education is not only affected by the
EA2010. Legislation and regulations related to exclusions, qualifications and
apprenticeships regulate the UK’s education and qualification framework. From our
experience such provisions take little or no account of equality issues and in
particular the impact on disabled students’ ability to participate in mainstream
education. Apprenticeship regulation is an example of how disabled students’
equality has not been incorporated into regulation. The Specification of
Apprenticeship Standards for England (SASE) regulation sets out minimum
requirements to be included in a recognised English framework. Apprentices are
expected to gain a level 1 (equal to GCSE level G) or level 2 (equal to GCSE level
C) in Maths, English and ICT examinations in order to achieve a national accredited
Apprenticeship award at intermediate and advanced level. As some apprenticeship
providers have pointed out, disabled students are particularly disadvantaged by the
SASE’s requirement because the testing processes are not sufficiently flexible for
disabled students.
Some learners are more than capable of achieving the competence and
knowledge based elements of an apprenticeship but, due to their learning
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difficulty is unable to achieve English and maths at the required standard.”
(Melanie Bancroft)
The college is reluctant to allow [horticulture] student on the course because
of the functional skills aspect. To me, this seems to discriminate against
students with LDD, especially one who is working on a level 2 standard in his
vocational subject.” (Jayne Cunningham 2014)
SASE are one of a whole range of education and qualifications regulations that have
been enacted that clearly place disabled students at a substantial disadvantage as
compared to their non-disabled peers. Also the consistency of reasonable
adjustments that disabled students can be frustrated by different legislation
governing the regulation and provision of education. A good example is the marking
of English Language, English Literature, Geography, History and Religious Studies
examination scripts. During 2013 OFQUAL introduced a requirement that 5% of the
total marks will be allocated for spelling, punctuation and grammar in GCSE English
Language, English Literature, Geography, History and Religious Studies. In contrast,
a blanket policy to award all students 5% of spelling, punctuation and grammar in the
marking schemes of Geography and History degrees examinations by disabled
students. Our experience of working with regulatory bodies such as the Department
for Education, Joint Apprenticeships Unit and OFQUAL is that equality issues are
rarely factored into the drafting and implementation of education-related regulations
and law. As education legislation and associated regulation and statutory guidance
trumps the EA2010, disabled students have fared badly in both accessing
mainstream education and having their educational achievements recognised by the
state education and apprenticeship frameworks.
QUESTION 5: How effective has the public sector equality duty been in
practice?
The intention of the Public Sector Equality Duty is to promote equality of opportunity
for both disabled and non-disabled people. The intention is that PSED will be under
a duty to prevent disabled students from being discriminated against or placed at a
disadvantage in comparison to their non-disabled peers. The Equality Act 2010
public sector equality duty requires education providers and strategic education
bodies (LAs, OFQUAL) to have regard to promoting equality for disabled students.
Usually this requires an Equality Impact Assessment which education providers and
public bodies such as OFQUAL can choose to disregard.
ALLFIE believes that the Government has forged ahead with its new SGP (?) policy
despite OFQUAL’s Equality Impact Assessment highlighting that disabled candidates
may be substantially disadvantaged. As OFQUAL’s EAI highlights, the SGP policy is
discriminatory for disabled candidates, particularly those who are dyslexic.
What this highlights is a limitation of the PSED and Equality Impact Assessment
where Government can ignore its findings. We believe the PSED assessment must
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have weight in law for addressing disablist policies pushed through by Ministers and
Governments.
QUESTION 10: How do you assess its contribution to the aims of the Equality
Act 2010?
ALLFIE would use our inclusive education principles and our manifesto demands to
assess the Equality Act 2010’s ability to promote inclusive education for all disabled
learners - http://www.allfie.org.uk/docs/ALLFIE%20Manifesto.pdf .
QUESTION 11 : Are there other legislative or non-legislative measures that
would improve implementation of the Equality Act 2010 in respect of
disability?







A national implementation plan to build and sustain an education system that
promotes inclusive education practice.
Full and timed implementation of the UN Convention on the Rights of Persons
with Disabilities: Article 24 into UK Law and the necessary amendments to the
Equality Act 2010
Inclusive education principles that define what equality means for disabled
students. .
Disability related segregation and exclusion within mainstream education and
in the wider education system must be prohibited.
Disabled pupils/students can expect to have their access requirements
accommodated in any type of education or training provision free from
budgetary and other constraints imposed by education providers, LAs or
Government.
Disabled students with impairment/health condition related behaviours must
be fully protected by law.
The Public sector equality duty and Equality Impact Assessments should not
be process driven - if education policy and/or legislation discriminates or
places disabled students at a disadvantage then the education provider or
education policy maker will be under a duty to either eliminate or mitigate the
impact.
Whilst ALLFIE has highlighted the shortcomings in the Equality Act 2010, it can
provide a strong framework to promote the kind of education system we want, one
that welcomes and values all pupils/students whatever their background, learning
style or ability. The Equality Act should be the bench mark for promoting inclusion
and equality in all areas of our lives including in mainstream education. ALLFIE
believes that if the Equality 2010 Act outlawed segregation and exclusion, the right
for disabled students to be included in mainstream education would strengthen their
access to equal opportunities alongside their nondisabled peers.
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Inevitably ALLFIE’s focus for this submission has been to highlight the weaknesses
in the EA2010 in protecting the right of disabled pupils/students to be educated in the
mainstream, ALLFE shares the same concerns as many other Disabled People’s
Organisations about the wider failings in the EA 2010 to support the right for disabled
people to independent living, which if applying the DPO definition includes inclusive
education and training.
We would like the opportunity alongside Inclusion London to provide oral evidence to
the House of Lords Inquiry into Equality Act.
Submission by
Simone Aspis
Tara Flood
Policy and Campaigns Coordinator, ALLFIE
Director, ALLFIE
simone.aspis@allfie.org.uk
tara.flood@allfie.org.uk
Alliance for Inclusive Education, 336 Brixton Road, London, SW9 7AA
Tel: 020 7737 6030
References
Equality Challenge Unit: Managing reasonable adjustments in higher education 2012
House of Lords & House of Commons Joint Committee on Human Rights Legislative
Scrutiny: Children and Families Bill; Energy Bill Third Report of Session 2013–14 Report
Department for Business, Innovation and Skills Specification of Apprenticeship Standards for
England (SASE) February 2015:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/403095/bis15-14-specification-of-apprenticeship-standards-for-england-SASE.pdf
NIACE is working with Government, employers and providers to support disabled
Apprentices: http://www.niace.org.uk/our-thinking/blog/niace-working-governmentemployers-and-providers-support-disabled-apprentices http://www.niace.org.uk/ourthinking/blog/niace-working-government-employers-and-providers-support-disabledapprentices
Department for Education: A profile of pupil exclusions in England
2012https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/183498/
DFE-RR190.pdf
Farrer & Co Disability discrimination: recent cases 2015 includes summary of X v Governing
Body of a School upper tribunal decision 2015
http://www.farrer.co.uk/Global/Briefings/14.%20School%20Briefing/Disability%20discriminati
on%20-%20recent%20cases%20.pdf
X v Governing Body of a School upper tribunal decision:
http://www.education11kbw.com/wp-content/uploads/2015/01/X-v-GB-of-a-school.pdf 2015
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