Alliance for Inclusive Education’s Children and Families
Bill Part 3 (SEN Provisions) House of Commons Second
Reading Briefing for MPs on Monday 25th February 2013
ALLFIE Background
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 right to
access and be supported in mainstream education. When ALLFIE
talks about disabled people (and learners) we include disabled
children and young people with Special Educational Needs labels.
ALLFIE believes that education should support the development of
physical, vocational and academic abilities through mixed-ability
tuition in mainstream schools, so that all students and children have
the opportunity to build relationships with one another. ALLFIE, our
members and our networks believe that a fully inclusive education
system will benefit everyone.
Children and Families Bill – General Principles
The Department for Education’s SEN statistics reported in July 2012
that during 2011 there was a drop in SEN school pupils attending
mainstream funded schools, from 54.3 to 53.7 per cent.1 The biggest
drop is in mainstream early-years and nursery provision. An
increase in the numbers of disabled school pupils with SEN not
participating in mainstream education is a worrying trend that needs
urgent attention which ALLFIE hopes the Bill will address.
The Government is currently under a public sector equality duty
(Equality Act 2010 s(149) to eliminate disability discrimination,
1
Department for Education (2012) “Special Educational Needs in England, January 2012”
1
advance equality of opportunity and promote good relations
between disabled and non-disabled people. This means that
disabled children and young people should not be discriminated
against and must have the same opportunities to benefit from
mainstream education as their non-disabled peers. Good relations
between disabled and non-disabled people can only be achieved by
everyone playing, learning and being together within a mainstream
education setting.
ALLFIE believes that the ‘presumption for inclusion’ principle in Part
3 of the Children and Families Bill does not sufficiently advance the
equality of opportunity between disabled and non disabled children
and young people for the following reasons:
1. Disabled children and young people with SEN will not have
the same entitlement to mainstream education as their nondisabled peers. (Clauses 33 and 39)
2. Disabled children and young people with SEN with an
Education, Health and Care Plan and disabled children and
young people with SEN without an Education, Health and Care
Plan will not have the same rights to SEN provision and
mainstream placement. (Clauses 33, 34 and 39)
3. Presumption of inclusion will not cover mainstream
accredited course attendance and participation. (Clause 39)
4. Special Academies will have the right to educate disabled
children and young people with SEN outside the SEN legal
framework. (Clause 34)
5. Mainstream schools will have the right to refuse to admit
disabled children and young people with SEN. (Clause 35)
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ALLFIE believes the Bill’s Part 3 ‘presumption for inclusion’ principle
must include the following provisions for the SEN framework to
eliminate discrimination and promote equality of opportunity
between disabled and non-disabled children and young people:
 Disabled children and young people with SEN and their
parents must have an unqualified right to choose a
mainstream school or post 16 institution.
 The removal of LA powers to name a special school or post 16
institution in a disabled child’s or young person with SEN’s
Education, Health & Care Plan.
 Disabled children and young people with SEN with an EHCP
and disabled children and young people with SEN and without
an EHCP must have the same rights to access mainstream
education and SEN provision.
 Presumption of inclusion to mainstream courses.
 Legal safeguards in place, so that parents and disabled
children and young people with SEN admitted to a special
academy can appeal for a mainstream school or post 16
institution placement at a later date.
 Review the need to have the ‘efficient education’ and
‘resources’ caveat for refusing a mainstream school or post 16
placement.
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Children & Families Bill – ALLFIE’s concerns in more detail:
1. Disabled children and young people with SEN will not have an
entitlement to mainstream education. (Clauses 33 and 39)
Currently disabled people are the only group of students that can be
prevented from choosing to be educated into mainstream education.
The lack of choice for disabled students with SEN and their families is
as real now as at the time of the 2005 Disability Rights Commission
investigation2, eight years ago. The charity, Working Families, which
represents parents of disabled children, said that:
“Parents of disabled children may be faced with a very limited
choice of schooling locally. They may encounter difficulties in
ensuring their disabled child is educated alongside their siblings
if there is no appropriate provision.” 3
“Unfortunately and against all my beliefs we have had to opt
for a special school….If you segregate with disability then you
are saying that these children should not have the same
opportunity as so called normal children which in my view is
discrimination” (Parent of a disabled child)4
The consequence of allowing LAs to push or cajole families, who
clearly do not want segregated education, should not be tolerated
within a civilised society. No child, young person or parents should
ever be forced to accept inappropriate support provision in
mainstream education or have to be educated at home as a result of
2
DRC (2005) “DRC Research Report – Experiences of Disabled Students and their Families
Working Families (2011) “Working Families response to the Green Paper:
Children and Young People with Special Educational Needs And Disabilities –Call for Views”
4
Alliance for Inclusive Education (2011) “ALLFIE’s Response to the Government 'Support and Aspiration: a New
Approach to Special Educational Needs and Disability’ Green Paper”
3
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refusing to accept the LA offer of a special school or post-16
education placement.
Mark has at statement with a provision for speech and
language therapy (SALT) which is provided on a regular and
consistent basis by the primary mainstream school he attends.
When Mark moves from primary to secondary, the school say
‘You will have to get SALT in a special unit; we don’t have
speech and language therapists coming in’. The new school is
an Academy, and manages its own budget. Mark’s parents
think the Academy should purchase SALT, as specified in the
statement. The Academy argues that they don’t have the
resources. As a result, Mark is not getting any SALT whilst on
the mainstream Academy school roll. Mark’s parents did not
want to move him from mainstream to a special school for
SALT. Mark’s parents do not want to rock the boat as they are
afraid of the LA amending Mark’s statement (or EHCP) and
naming a special school placement. (Parent of a disabled child)
ALLFIE believes it is time that the Government stopped LAs from
having the power to place disabled children and young people with
SEN into segregated provision, especially when it’s clearly not
wanted by the child or their family. In the Bill, Clause 34(2) states
that disabled children and young people with SEN and without EHC
plan must be educated in a mainstream school or post 16
institutions which ALLFIE welcomes but emphasise that this MUST
also cover disabled children and young people with SEN who have an
EHC Plan.
2. Disabled children and young people with SEN with an
Education, Health and Care Plan and disabled children and
young people with SEN without an Education, Health and Care
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Plan will not have the same rights to SEN provision and
mainstream placement. (Clauses 33, 34 and 39)
Whilst under Clause (34) of the Bill, disabled children and young
people with SEN and without EHCP are entitled to be educated in a
mainstream school or post-16 institution, however they have no
entitlement to SEN provision whilst there. The following example
showed that currently disabled children and young people without a
statement (or soon to be EHCP) cannot be sure they will receive the
right amount support on a regular basis:
Margaret was on School Action Plus and receiving a limited
amount of one-to-one support. As soon as Margaret was
statemented she received consistent one-to-one support which
has had a significant positive impact on her learning and
inclusion in the lessons. (Parent of disabled child)
Many disabled children and young people with SEN but without an
EHCP will continue to have difficulty in receiving appropriate levels of
SEN provision under the proposed SEN framework. Schools have
traditionally received ring-fenced funding for the purpose of
resourcing SEN provision for their SEN pupils. However, since April
2012 schools can use their own discretion in terms of how they use
their budget to cover pupil tuition, pastoral support and additional
costs associated with pupils with SEN or those pupils who are
financially disadvantaged.
ALLFIE is concerned that the situation will worsen as a result of
having a single SEN category (clause 20), the fact that the Local Offer
will have no legal basis (clause 30) and greater budgetary autonomy
for schools. ALLFIE notes the governors’ duty to use their best
endeavours to secure SEN provision for their pupils, However we do
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not think it goes far enough. (clause 61) This is because disabled
children and young people with SEN and without an ECHP have no
entitlement to SEN provision. Thus there is no absolute duty for
schools to arrange SEN provision for their pupils when they feel it is
required under the proposed SEN framework. As a consequence,
many disabled children and young people with SEN do not and will
not receive their SEN provision on a consistent basis whilst in
mainstream education.
Taking into accounts the significant cuts to SEN budgets generally,
parents of disabled children and young people with SEN are more
likely to use the statutory assessment process in order to secure the
SEN provision that once would have been arranged within the school
or college budget. Under clause 33 of the Bill, the LA is required by
law to arrange any SEN provision to meet a disabled child’s or young
person’s SEN as set out in his or her EHCP. However, disabled
children and young people with SEN lose their right to be educated in
a mainstream setting as prescribed in clause 34(2), if they pursue an
EHCP. This is because as soon as the single assessment process is
initiated, the LA is able to name a special school or post-16
institution under clause 33(3) and (4) and clause 39(5). The following
case study highlights this issue:
Lesley has autism and requires a level of SEN provision which
cannot normally be provided within a mainstream school’s own
resources. This means that Lesley’s mother, Mrs Tunstall
begins the statementing/EHCP process in order to secure the
SEN provision that Lesley requires to flourish in mainstream
school. Mrs Tunstall was advised by the LA that they would
only provide a statement (or offer the equivalent EHCP) for
children being placed in specialist provision. With the threat of
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a special school placement, Mrs Tunstall decided to keep Lesley
on the mainstream school roll despite the lack of the necessary
level of SEN provision. (Parent of disabled child)
It is unacceptable that children, young people and their parents must
balance the risk of being forced to accept a special school placement
when attempting to secure SEN provision in a mainstream school or
post 16 setting, via the EHCP assessment route. ALLFIE believes LAs
should not be given the power to arrange SEN provision whilst
having the power to determine the type of education setting the
disabled child or young person with SEN should attend.
3. Presumption of inclusion will not cover mainstream
accredited course attendance and participation. (Clause 39)
Under clause 39 of the Bill the ‘presumption of inclusion’ principle
only makes explicit mention of mainstream institutions such as
schools, colleges and training providers. This was adequate when all
children and young people (including those with SEN) had an
entitlement to access the national curriculum. However, since many
mainstream schools have become Academies, children and young
people no longer have an entitlement to the national curriculum. As
a result of the change, ALLFIE has noticed an increase in the range of
segregated n on curriculum specific courses for both disabled pupils
and students with SEN attending mainstream schools and post-16
institutions. ALLFIE believes the trend for schools to offer
segregated courses to groups of disabled pupils with SEN is on the
increase as a result of the Government policy which removes the
entitlement to a national curriculum. For example ALLFIE is aware
of a secondary school in London that now offers full-time discrete
learning foundation courses for disabled pupils with SEN.
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4. Special Academies will have the right to educate disabled
children and young people with SEN outside the SEN legal
framework. (Clause 34)
Clause (34)(9) allows Special Academies to admit SEN children and
young people, permanently, outside the statutory SEN assessment
process. ALLFIE is absolutely against SEN children and young people
without EHCP being placed in a Special Academy outside the SEN
legal framework. There is good reason why - the 1996 Education
Act required disabled children and young people with SEN to have an
SEN statement before they could be placed in a state funded special
school. This crucial provision was included in the 1996 Act and must
also be included in the current Bill to prevent LAs from placing
children and young people into special schools when they should be
educated within the mainstream.
“Historically, many hearing-impaired children were assumed to
have learning difficulties because they were not assessed
properly. Many children were placed inappropriately in special
schools, and in the wrong sort of special school, because of
inadequate knowledge of their needs….. We are concerned that
this would disproportionately affect children and young people
from ethnic backgrounds where English is not their first
language, where parents themselves are vulnerable and may
also have a learning difficulty or those families living in poverty
where access to information and advice is hard to establish.”
(IPSEA)5
With increasing pressure to meet academic targets, tighter OFSTED
inspections, reduced budgets and less support coming directly from
5
IPSEA on SEN Reforms Q&A (2013) http://ipsea.blogspot.co.uk/
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LAs, ALLFIE is deeply concerned that mainstream schools will pass
their SEN pupils on to Special Academies. This concern is wellfounded, and supported by the Academies Commission’s research.
“..Academies/chains are setting up Free Schools and alternative
provision for their SEN and BESD pupils, so removing them from
the performance data of the original academy; and a
consequent move away from inclusive practices.”6
ALLFIE is also very concerned that parents will be put under
increasing pressure to agree to Special Academy placements, even if
their child is outside the SEN legal framework, without the right to
appeal against education placement. ALLFIE believes this provision
will erode existing opportunities for parents, disabled children and
young people with SEN to use the tribunal appeal process for a
mainstream school or post 16 institution placement sometime in the
future. ALLFIE believes clause (34)9 is open to significant abuse by
overly pressured schools and LAs and therefore needs amending.
5. Mainstream schools will have the right to refuse to admit
disabled children and young people with SEN. (Clause 35)
Under clause (35) Mainstream schools only have a duty to educate
disabled children and young people with SEN if it is reasonably
practical and is ‘compatible with the efficient education of other
pupils’. In practice, LAs and individual schools can reason that
budgetary and educational efficiency for other pupils means they
need to refuse to admit a disabled pupil with SEN. ALLFIE
anticipates that tighter budgets and other pressures already
mentioned in this Briefing, will lead to increasing numbers of
mainstream schools refusing to admit disabled children with SEN
6
Academies Commission (2013) “Unleashing Greatness Getting The Best From an Academised System”
10
because they will no longer have the resources to provide the
appropriate level of SEN support. For example, Mossbourne
Academy in London refused to admit an 11 year old SEN boy with
cerebral palsy, who simply required a bit of support during break
times to make sure he was safe when moving about in the school.
He needed no additional support. The school refused to offer him a
place on the grounds that his admission "would be incompatible with
the efficient education of other children in the school"7. This
example demonstrates how the existing caveat is open to
misinterpretation and misuse.
On a broader note, ALLFIE believes the ‘efficient education of other
pupils’ caveat (which often includes resources) is creating
unnecessary barriers for disabled children and young people to be
educated in mainstream and is not necessary. What is considered
as ‘efficient education’ always starts from what is appropriate for the
non-disabled school / college age population rather than for the
whole class of pupils or students with varying abilities.
ALLFIE’s six key changes to the Children and Families Bill will ensure
SEN children, young people and their parents, have the same
opportunity to access mainstream education as outlined in the
Equality Act 2010. This will encourage mainstream education
providers to build their capacity to develop and implement inclusive
education practice that would be of benefit for all.
In 2006 OFSTED reported that resourced mainstream schools were
best placed for improving the learning environment for disabled and
non-disabled pupils alike:
7
Mawell & Gillott (2012) Latest News - May 2012 Major problems for children with special needs wanting
places in Academies http://www.maxwellgillott.com/news-may2012-sen-academies.htm
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"Mainstream schools with additionally resourced provision are
particularly successful in achieving high outcomes for pupils
academically, socially and personally. In the best example,
resourced mainstream provision was used as a vehicle for
improvement throughout the school." OFSTED ‘Inclusion: does
it matter where pupils are taught?’8
If the Government really does believe in choice, with the
‘presumption for inclusion’ for disabled children and young people,
then changes are required in the Bill so that all barriers to securing a
mainstream education are removed.
ALLFIE is working on draft amendments currently and would
welcome the opportunity to work with MPs during the Bill’s
Committee stage.
For information, please contact:
Simone Aspis (Policy and Campaigns Coordinator) Tel: 0207 737 6030 Mob: 07795 142 108
simone.aspis@allfie.org.uk
Tara Flood (Director) Tel: 0207 737 6030 Mob: 07932 750667
8
OFSTED (2006) “Inclusion Does It Matter Where Pupils Are Taught”
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tara.flood@allfie.org.uk