Response of the Equality and Human Rights
Commission.
Consultation details
Title:
Support and aspiration: A new approach to
special educational needs and disability.
Source of consultation:
Department for Education
Date:
30th June 2011
For more information please contact
Name of EHRC contact providing response and their office address:
David Coulter and Anne Madden
EHRC
Arndale House
Arndale Centre
Manchester M4 3AQ.
Telephone number:
0161 829 8542 / 0161 829 8565
Email address:
David.Coulter@equalityhumanrights.com
Anne.Madden@equalityhumanrights.com
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1. Background: The Equality and Human Rights Commission
The Commission is a statutory body established under the Equality Act
2006, which took over the responsibilities of Commission for Racial
Equality, Disability Rights Commission and Equal Opportunities
Commission. It is the independent advocate for equality and human
rights in Britain. It aims to reduce inequality, eliminate discrimination,
strengthen good relations between people, and promote and protect
human rights. The Commission enforces equality legislation on age,
disability, gender reassignment, marriage and civil partnership,
pregnancy and maternity, race, religion or belief, sex, and sexual
orientation, and encourages compliance with the Human Rights Act. It
also gives advice and guidance to businesses, the voluntary and public
sectors, and to individuals.
2. Introduction
The Commission welcomes the opportunity to submit comments on the
Green Paper proposals for improving education access and outcomes
for children and young people with special educational needs (SEN) and
disabilities.
As well as being a right in itself1, education is an enabling right, allowing
individuals to develop their life skills, capacity and confidence to secure
other rights, economic opportunities and to lead full and rewarding family
lives. Yet data shows that disabled young people are significantly less
likely than non-disabled young people to enjoy education success and
the Commission has identified the need to close the qualifications gap for
disabled people as one of the most significant inequality challenges
facing Britain today.
Among adults of working age, those with a disability are roughly half as
likely to have degree level qualifications as those without, and lower
qualifications levels impinge directly on employment prospects. 33% of
pupils with visual impairments achieve on average 5 GCSEs A* - C,
compared with 61% of pupils with no identified SEN2. For all pupils with
SEN in England, 17% achieved 5+ good GCSEs or equivalent including
English and Maths compared to 61% of pupils with no identified SEN.
Education-related inequalities have an impact over the lifespan, not just
in childhood. Adults with more prior education are much more likely to
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access learning opportunities in later life. Action is needed to give more
disabled young people the opportunity to develop better qualifications
and skills. to open up a wider range of career opportunities, increase the
prospect of a higher income and greater independence,
We share concerns expressed in the Green Paper that the current
system of support for disabled children and children with SEN is not
working effectively, and that reform is needed.
This is evidenced by calls to the Commission’s helpline relating to
disability and education which indicate that this is by far the largest area
of concern3 . From January to December 2010, out of a total of 2019
enquiries for education across all equality strands, 1259 enquiries were
on disability in education, 62% of the education mail-box. Of these
numbers, two-fifths were ‘potential’ claims of disability discrimination.
Figures for calls this year so far indicate that, similarly, issues relating to
disability and education formed 61% of the total education mail-box.
Data from the Commission’s recently published Triennial Review, How
Fair is Britain?, on the attainment of disabled/ SEN pupils indicates that
those who have the worst attainment are on free school meals, which
suggests that the greatest disadvantage and systemic failure is for those
parents and children. When eligibility for free school meals is combined
with SEN, just over 1 in 10 boys with a physical disability or sensory
impairment from poorer households achieved 5+ good GCSEs including
English and Maths (only 1 in 7 for equivalent girls in these terms). This
compares with 41% of girls and 38% of boys achieving 5+ GCSEs at A*C grade who are eligible for free school meals.
Our response focuses on issues and questions relating to proposals
where our own data and evidence enables us to provide robust
responses. We have identified a number of concerns including issues
that we believe should form part of this reform agenda or that warrant
greater attention, and our response sets out these issues before moving
on to answer the specific consultation questions.
Our evidence base includes our own research and in particular the
Commission’s Triennial Review. We also draw on Commission Codes
and guidance for schools and service providers on their duties to
disabled people under the Equality Act 2010. We have also met with a
wide range of stakeholders to establish their views and these are
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included where appropriate. Also the Commission has a statutory
Disability Committee4 which has been consulted for this response.
In addition to responding to this consultation, the Commission has
highlighted disability issues in our recent responses to consultations on
the inspection framework and on behaviour and bullying guidance for
schools, and will be submitting briefings to Parliament regarding the
Education Bill. We are also developing a shadow report for the UN
Committee considering the UK Government’s measures taken to give
effect to the UN Convention on the Rights of Disabled Persons (CRDP).
3. Summary
One of the key inequality challenges identified by the Commission is to
tackle discrimination and disadvantage faced by disabled learners. We
welcome therefore the Green Paper highlighting the level of
disadvantage faced by learners with SEN and disabilities, including
issues of bullying and exclusion and we welcome proposals to tackle
systemic barriers and to improve practice in schools. We provide
additional evidence to show the size of the challenge in closing gaps and
the imperative to put in place changes that can improve outcomes.
We welcome the Government’s commitment to early identification and
assessment of support need. We consider the Education, Health and
Care plan to be a positive step forward in ensuring services are joined up
more effectively for disabled children with a statement, and welcome the
requirement on agencies to provide services with their responsibility
clearly outlined in each plan. We welcome the commitment to a multiagency approach to assessment and planning, recognising the range of
support needs, and the commitment to reduce the time taken for the
statutory assessment process, as any delay can have a lasting effect on
a child’s learning. We welcome the requirement for local authorities to
define the local offer with full information for parents.
The key question is whether these changes will have a positive impact
on attainment and outcomes, and we welcome the proposals for local
Pathfinders to test out ways of delivering effective change. We expect
that equality impact assessments will be part of the piloting process.
We also welcome the piloting of an independent right of appeal for
children regarding the SEN assessment and statementing process. We
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also welcome an amendment to the Equality Act 2010 which provides an
opportunity for disabled learners to appeal against an exclusion.
Issues of Concern

The Green Paper gives little emphasis to the Equality Act 2010, in
particular how it affords protection from discrimination and
disadvantage to disabled learners across all education settings, the
duty on local authorities and schools for accessibility plans and the
impact of the Public Sector Equality Duty. Radical reform to improve
education access and delivery for disabled children must factor in
equality requirements on those providers tasked with taking forward
the new agenda and delivering joined-up education, health and social
care plans.

We are particularly disappointed that there is no mention of the
extension of the Reasonable Adjustment Duty to cover auxiliary aids
and services for schools and no indication therefore of when this is
likely to come into force5.
We recognise that a significant proportion of students will be disabled
but will not have a statement of SEN, and for these students the
Equality Act 2010 is particularly important, as the school may well
have to make reasonable adjustments to ensure they are able to fully
participate in education. On this basis the Equality Act will continue to
make a significant impact on the opportunities available to disabled
learners, in particular as it is anticipatory in nature and affords them
continuing protection.
 We welcome the detailed consideration of learning and achieving
issues and, as part of this, the identification of the unacceptably high
numbers of children with SEN who are excluded or bullied. However,
we believe that the proposed remedies set out in the Education Bill,
with a focus only on tackling poor behaviour rather than a direction to
schools to monitor bullying and to take action to reduce incidents, and
the removal of the right to re-instatement when excluded, fall short
and are unlikely to produce urgent improvements that the impact of
bullying and exclusion on disabled children demands.
 We welcome the amendment to the Equality Act 2010 which enables
a disabled person, i.e. a pupil, to challenge an exclusion decision in
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the First Tier Tribunal, in addition to their parents, but are concerned
that there is no mention of it in the Green Paper.
 The Commission strongly supports the inclusion of disabled children
in mainstream education settings. Hence we are particularly
concerned about the statement of an intention to ‘remove the bias
towards inclusion’ as part of the strategy to improve parental choice.
The Green Paper objective is reform to improve education outcomes
and evidence of what works to achieve this should drive proposals.
While more evidence on this is needed, Ofsted has found that quality
of education is key and that more good and outstanding provision
existed in resourced mainstream schools than in other types of
provision including special schools6.
The Commission understand the complexities of full inclusion for
pupils who have complex disabilities but the challenge is not to focus
on the disabled pupil needing support but rather it is about the social
model and human and civil rights of all disabled people to be included
in society.
We also understand and respect the right of parents to choose to
send their child to a special school, including away from their local
community. This may be due to the restricted choices they face
currently in ensuring a high quality education in some mainstream
schools, or may be because they consider their child would be less
likely to be bullied in a special school. However research7 indicates
that that special schools are not necessarily safer for disabled
children.
The Commission would stress that the best interest of the child must
be paramount in any decision-making process, as evidence must be
provided that provides indicators of outcomes for disabled children in
both mainstream and special schools. This evidence must include
social development opportunities and career and post-16 education
choices, as well as academic performance. Only then will it be
possible for an informed choice to be made, by parents and by
children. The current situation with restricted options for disabled
children and a lack of information about outcomes in both settings
does not allow parents to make a genuine choice.
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The inclusion agenda for disabled young people is enshrined in the
UNCRPD, Article 24 and was developed to counter disadvantage and
discrimination resulting from segregated and second class learning
opportunities. Equality legislation has provided better entitlement to
learning provision, but our stakeholders point to evidence of the high
numbers of pupils with SEN statements educated in special schools
as evidence not of bias towards inclusion, but rather of discrimination,
with parental choice for mainstream schools not being met. Data
suggests that there has been no increase in the numbers of young
people educated in mainstream rather than special schools.
In addition, there are costs to society overall in segregating disabled
young people. Separation of disabled people from mainstream
education fuels prejudice, and evidence from our Disability
Harassment Inquiry8 has pointed to young people often being the
perpetrators of disability-related harassment. In additional the inquiry
indicates that some harassment may occur because of fear and/ or
misunderstanding of what disability is. This could be made worse by
further segregation.
The Commission is concerned that the Green Paper signals a policy
shift away from inclusion that will undermine progress towards
integration into mainstream education for disabled children, impacting
negatively on individual educational and life outcomes and fuelling
costs to society from continuing prejudice and hate crimes. As is
highlighted below (p.20), all state-funded schools9 have a duty to
foster good relations, as part of their public sector equality duty, and
this means eliminating prejudice and promoting understanding. This
duty is also conferred on the Commission by s.8 of the Equality Act
2006, which states that we have the responsibility to work towards the
elimination of prejudice against, hatred of and hostility towards
disabled persons. We do not believe that segregated schooling
furthers these objectives.

Criteria for having choice of schools met may further erode the rights
of disabled pupils for mainstream school places resulting in pupils with
SEN statements being placed in special schools. Parents of children
with statements of SEN may be able ‘to express a preference for any
type of state-funded school including special schools, academies, free
schools, and have their preference met unless it would not meet the
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needs of the child, be incompatible with the efficient education of
other children or be an inefficient use of resources.’ We question
whether these criteria are compatible with the requirements of the
Equality Act 2010 in relation to equal access to schools, and we
suggest that they send the wrong signals to mainstream schools as
they can refuse requests on these grounds without being required to
marshal the necessary evidence.
We would like to consider each of these criteria in turn to explain why
we think they are problematic.
Firstly regarding the criterion that the education provided would not
meet the needs of the child. Given the fact that learning support and
inclusive learning environments still do not exist it many schools, it
would be easy for a mainstream school to argue that it is not suitable
for a disabled child, without giving proper consideration to what
adjustments could be made and what support is provided, and the
desirability of that child being educated alongside their non disabled
peers.
Secondly regarding the criterion that the inclusion of a disabled child
would be incompatible with the efficient education of other children.
Again it can be very easy for parents of non-disabled children to think
that the best place for disabled children is segregated education,
because they see that there is such competition for teacher’s time and
other learning support, that there can be a view that disabled children
make ‘disproportionate’ demands on the mainstream system, so this
view must be challenged to avoid tacit discrimination.
Thirdly regarding the criterion that inclusion would be an inefficient
use of resources. Again where there is competition for limited
resources it can be easy to argue that disabled children are too
expensive to educate in mainstream school, yet the per capita cost of
educating a child in special education is much higher, so resources
need to be better used to enable all disabled children to have all, or as
much as possible, of their education in mainstream school.
Finally we would stress that decisions regarding these criteria need to
be made in a transparent and balanced manner, with information
being made available to of how decisions are made, by whom, and
how the decision process was taken forward.
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 Proposals to reduce the number of students with special educational
needs, in particular those without statements may impact negatively
on disabled children and those currently on School Action and School
Action Plus if not implemented in such a way that no child in need of
support to secure good education outcomes falls through the net
because of new ways of assessment.
 Proposals need to include more focus on the participation of children/
young people in the assessment process, the development of a
programme of support, and the review process, as per the social
model of disability.
 We welcome the Government’s commitment to put in place pilots
giving a child an independent right of appeal for SEN and disability
discrimination claims, and we are keen to ensure that such measures
are effective, by providing support and advocacy and pro-active
promotional strategy.
 Although not reflected in this consultation, proposed changes to legal
aid for First-tier Tribunals, whereby legal aid will no longer be
available to parents to help them prepare appeals to the First Tier
Tribunal (SEN and Disability) will have a negative impact on disabled
children and this should be raised as part of this consultation.
 We are concerned that there may be reduced capacity for voluntary
and community organisations, in particular disabled people’s
organisations, to take forward the roles and responsibilities
considered in the Green Paper, due to local authority and central
government spending reviews.
 We have not been able to find an Equality Impact Assessment for the
Green paper, despite contacting the Department for Education on this
matter. We are also disappointed that the Green Paper was made
available in Easy Read format in May, two months after the
publication of the full Green Paper. We do expect the DfE to meet
their own responsibilities under the Public Sector Equality Duty and to
set an example to schools similarly charged with meeting this duty.
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4. General Points
The Equality Act 2006 requires the Equality and Human Rights
Commission to monitor the progress that society makes towards
becoming one that is more equal, where every individual has the
opportunity to achieve their potential, and where people treat each other
with dignity and respect. This progress must be reported on every three
years.
The EHRC’s first Triennial Review, How Fair is Britain? was laid before
Parliament on the 11th October 2010, and we have drawn upon this
report for the data cited in this section of our response. We feel it is
relevant to include all this information in our response to ensure the full
picture of disadvantage faced by disabled children is clear.
Our evidence highlights ongoing disadvantages and poor outcomes
faced by disabled pupils, as well as disabled people’s poor experiences
in the education system.
Gaps in educational attainment between disabled children and nondisabled children
Level of development at age 5
A higher percentage of pupils without any identified SEN achieved a
good level of development in 2008/09. For pupils with SEN (both without
a statement and those with a statement of SEN), 15% achieved a good
level of development compared to 56% for those pupils with no identified
SEN, according to the Early Years Foundation Stage Profile.
Pupils with a statement of SEN have lower achievement than those
pupils who have SEN without a statement. Of this group only 4%
achieved a good level of development compared with 17% of pupils who
have SEN but without a statement.
Where a pupil has a statement of SEN or is School Action Plus, their
primary need is recorded. Children whose primary need was visual
impairment were around half as likely to achieve a good level of
development (29%) compared to pupils with no identified SEN. This
dropped to just over one in six (16%) of pupils whose primary need was
speech, language and communication10.
Attainment at age 16
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Pupils with SEN perform less well than pupils with no identified SEN at
age 16. For all pupils with SEN in England, 17% achieved 5+ good
GCSEs or equivalent including English and Maths compared to 61% of
pupils with no identified SEN. Students without a statement performed
better than those with a statement. The percentage of pupils who
achieved 5+ good GCSEs or equivalent including English and
mathematics was:



21% for pupils at school action
13% for pupils at school action plus
6% for pupils with a statement of SEN
Achievement varies by impairment. In England in 2009, 1 in 5 (20%)
pupils whose primary need was autistic spectrum disorder achieved 5+
good GCSEs including English and Maths, dropping to only 11% of those
with behavioural/emotional/social needs. Pupils whose primary need was
visual impairment were still only half as likely to achieve 5+ good GCSEs
or equivalent including English and Maths compared to those with no
identified SEN (33% compared to 61% of pupils with no identified
SEN)11.
When eligibility for free school meals is combined with a SEN, it leads to
extremely low levels of attainment with only just over 1 in 10 of boys with
a physical disability or sensory impairment from poorer households
achieving 5+ good GCSEs including English and Maths this (only 1 in 7
for equivalent girls in these terms). This compares with 41% of girls and
38% of boys achieving 5+ GCSEs at A*-C grade who are eligible for free
school meals.
Gaps in education participation rates between disabled people and
non-disabled people
Adult Learning
Participation of disabled people in adult learning reveals a stark picture
of inequality as disabled people participate at half the rate of nondisabled people. Across Great Britain 46% of non-disabled people
participate in adult learning, compared to only 23% of disabled people12.
Qualifications
Disabled people across the UK are three times as likely to have no
qualifications as non-disabled people (33% of Equality Act 2010 disabled
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and work-limiting disabled people have no qualifications compared to
11% of non-disabled people)13. The difference for those who are worklimiting disabled only or EA disabled only, is much smaller with 18% and
13% having no qualifications respectively. It is important to note that this
will be in part an age effect as older people are both more likely to be
disabled and to have no qualifications.
The same pattern is evident in reverse for degree level qualifications.
Only 6% of EA disabled and work-limiting disabled people have a degree
compared to 15% of non-disabled people. The difference for those who
are work-limiting disabled only, or EA disabled only is much smaller with
10% and 12% having a degree level qualification respectively14. In 2008
11% of working age disabled people held degree-level qualifications,
compared to 22% of working age non-disabled people15.
Further education
Our stakeholders report that young people with learning difficulties are
not getting access to the full range of courses in further education,
mostly being offered basic skills courses. This point is reinforced in the
following quote from the Adult Learning Inspectorate in 2006:
“Too many learners on discrete programmes are, however, studying a curriculum
based on independent living skills and skills for life that does not prepare them
adequately for the possibility of engaging in the open or immediate labour
market. .... “(Educational) Providers need to take the initiative by developing
provision that is genuinely inclusive. The provision should focus on learners’
abilities and potential, rather than meeting the requirements of external
accreditation and awards.”16
Higher education
In 2007/08 less than 1 in 10 (8%) of students studying for a first degree
in the United Kingdom were known to be disabled. Students who were
known to have a disability were slightly more likely to study part-time
than full-time (8% of full-time students were known to have a disability,
and 9% of part-time students)17.
It is worth bearing in mind that the majority of disabled students in higher
education have a diagnosis of dyslexia (57.9% of the disabled student
population in 2007), and an analysis of Higher Education Statistics
Agency data showed that this group of students was significantly more
likely to be male and from middle-class backgrounds compared with nondisabled students18.
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The skills/ apprentice gap between disabled and non-disabled
adults
Basic skills
The English Skills for Life Survey asks respondents whether they have a
longstanding illness or disability. Respondents who answered yes were
less likely to achieve functional literacy (77% compared to 85% of
respondents without a longstanding illness or disability) and less likely to
achieve functional numeracy (44% compared to 47% of respondents
without a longstanding illness or disability)19.
In total, 5% of the total number of respondents claimed to have a
learning disability of some kind. Respondents with a learning difficulty
were less likely to reach functional literacy than those without a learning
difficulty (57% compared to 85%) and considerably less likely to reach
functional numeracy (24% compared to 54%)20.
Apprenticeships
Commission evidence21 suggests that disabled young people are not
given access to work-based learning and apprenticeships and
information received on further education options can be negative. An
understanding of the social model of disability is crucial here in ensuring
disabled young people’s choices are not constrained by beliefs that
disabled young people cannot ‘cope’ with certain choices.
Research data shows22 that in apprenticeships the success rate for 1618 year old non-disabled young women is higher (by 9%) at 55%, than
for disabled men. In Advanced Apprenticeships non-disabled young men
have a 20% higher success rate, at 59%, than disabled young women.
Similar success rates are found in those taking apprenticeships who are
19 and over, with 9% difference for non-disabled women vs. disabled
men, and 19% difference for non-disabled men compared to disabled
women.
As is suggested in the DCSF’s Equality Impact Assessment for the
Apprenticeships, Skills, Children and Learning Act 2009, it would be very
useful for relevant partners to develop information, advice and guidance
for disabled people so that they are aware of apprenticeships and the
assistance that is available to them. It would also be appropriate to
ensure that apprenticeship providers put in place the necessary
reasonable adjustments and support services for disabled people.
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Significantly higher rates of exclusion of pupils with SEN /
disabilities compared to non-disabled/ non-SEN pupils.
Nearly three-quarters (71%) of permanent exclusions in England
involved pupils with some form of SEN. The likelihood of permanent
exclusion was particularly high for those pupils without a statement, who
made up 64% of all exclusions in 2008/09. The data for 2008/09 show
that 24 out of every 10,000 pupils with statements of SEN are excluded
and 30 out of every 10,000 pupils with SEN without a statement are
excluded. This compares with 3 in every 10,000 pupils with no SEN.
As is made clear in the Equality Act 2010 Draft Code of Practice for
Schools, if a disabled pupil is excluded for behaviour connected to his or
her disability, this could be unlawful discrimination arising from disability,
unless the school can justify the decision as a proportionate means of
achieving a legitimate aim. Whether or not the school has complied with
its duty to make reasonable adjustments for that pupil will have an
impact on whether that exclusion can be justified. The Code also makes
it clear that schools are required to make reasonable adjustments to the
exclusion process.
We welcome the amendment to the Equality Act 2010 which enables a
disabled person, i.e. a pupil, to challenge an exclusion decision in the
First Tier Tribunal, in addition to their parents. Regulations23 for the
Equality Act 2010, which came into force on the 6th April 2011, bring
about this change. We are keen to ensure that this opportunity is made
known to disabled pupils, particularly when they have been excluded,
and are concerned that there is no mention of it in the Green Paper. This
is particularly important where a child is disabled but does not have a
statement.
We are watching with interest the progress of the Education Bill through
Parliament, in particular the replacement of the Independent Appeal
panels for exclusions, which have the power to reinstate a child, with a
review panel process, which does not have the power to reinstate the
child. The panel will have the power to recommend reconsideration of
the exclusion, or, if the panel considers that the decision falls foul of
judicial review limits, may order a reconsideration. However this may not
lead to a reinstatement of the child in the school.
We are concerned that giving schools the power to exclude without the
possibility of re-instatement may increase the numbers of those already
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over-represented in exclusions i.e. disabled young people and young
people with SEN.
A number of amendments were debated in the Commons Committee
stage of the Education Bill to ensure that children with special
educational needs or disabilities were provided with special treatment in
exclusion proceedings. All of these amendments were rejected by
Government, on the basis that the Equality Act 2010’s protection is
sufficient, as it allows for a child to be reinstated if the tribunal
determines that they have been discriminated against because of
disability. The Government also cited the Public Sector Equality Duty as
being relevant in such circumstances. However the right to challenge an
exclusion decision does not extend to statemented children or those on
school action or school action plus where they are not considered
disabled.
The Commission is concerned that the decision to exclude a child and
not provide them with the right of reinstatement if it is found that they did
not receive a fair hearing is a potential breach of Human Rights
legislation, specifically Article 6(1), the right to a fair hearing. Counsel’s
opinion in this regard is as follows:
At the very least, the Panel would need to be able to form its own, binding, view
on the facts (including for example on questions such as whether the school had
taken sufficient steps to try and avoid exclusion) and thus make findings which
differ from those on which the head teacher acted, with a power then to require
him to reconsider the sanction in the light of their findings of fact.
We will be bringing forward amendments to the Education Bill, to enable
Review Panels to undertake external assessment and to enable them to
consider re-instatement.
Children and young people with a disability or SEN are most at risk
of being bullied, and learning disabled children and young people
are particularly at risk.
Young people with a disability or SEN were most at risk of being bullied.
More than four-fifths of young people with a statement of SEN (83%) or a
disability that affected their schooling (81%) reported having been bullied
2004-2006, compared with under two thirds (65%) of young people with
no SEN or no disability24.
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According to qualitative research with 507 children and young people in
England and Wales, learning-disabled young people are particularly at
risk with 82% of those sampled reporting having being bullied25. Of those,
8 out of 10 children and young people had experienced bullying at school
and 3 out of 10 were bullied out on the street at the park or on the bus26.
However, survey evidence from teachers suggests while a quarter of
teachers recognise that pupils with disabilities are bullied, overall,
teachers feel that students with special educational needs are the most
supported group in school27. This may be because of the limited amount
of information held on bullying disabled pupils; The Commission’s
recently published research on identity-based bullying28 shows that only
28% of local authorities had evidence of the extent of disability-based
bullying in their schools.
Other Commission research29 found that particular groups of pupils, in
particular disabled young people, were less likely to feel physically and
emotionally safe at school and to be more at risk of bullying. Disabled
young people were the least likely to safe at school with 17% feeling
unsafe.
It is worth bearing in mind that students who are bullied at school have
worse exam results and are more likely to end up not in education,
employment or training. They are also less likely to stay in full-time
education after the age of 1630.
The last Government was considering changing the law to make it a
requirement on schools to record and report incidents of bullying against
disabled persons, and we supported that recommendation at that time.
The Commission’s research on identity-based bullying31, found that local
authorities are broadly supportive of this requirement. At a recent round
table discussions on this matter, there was unanimous support form a
range of key stakeholders for this proposal. The Commission is calling
for an amendment to the Education Bill currently going through
Parliament for this requirement to be put in place.
It is necessary to look also at best practice to prevent disablist bullying.
As is made clear in our research on identity-based bullying, it can only be
tackled if there are interventions which target both the perpetrator(s) and
the whole school community; preventative strategies must be used to
address the equality of disabled pupils, and responsive strategies should
be targeted at children who bully others on the basis of disability, to
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ensure they understand the consequences of their actions. This needs to
be accompanied by anti-bullying support work for disabled pupils, which
includes social skills training and appropriate responses to bullying
behaviour, and whole school approaches including opportunities for
classroom discussion in the PSHE/ citizenship curriculum.
We would like to stress that our concern about the high rates of bullying
of disabled children in mainstream schools does not mean that special
schools are necessarily safer for disabled children. We are aware from
research32 that there are significant rates of bullying in special schools as
well, and by segregating disabled children in these settings may well
mean that they won’t develop coping mechanisms to deal with hostility
and negative attitudes from a society dominated by non-disabled people.
Hence bullying of disabled children is not a reason for the child to be
taken out of a mainstream setting; the focus must be on schools to
record bullying of disabled children and take a firm stance on tackling it.
The Commission is currently developing curriculum resources and
teacher training materials on equality and human rights for key stage 3,
which will help schools deliver anti-bullying work. This will be available
for schools from September 2011.
Issues of concern
The protection afforded to disabled students in schools and FE/ HE
as a consequence of the Equality Act 2010.
We are aware that the Green Paper does not go into any detail about the
rights disabled people have, in particular protection from direct and
indirect discrimination, harassment and victimisation, from discrimination
arising from disability, and the school, early years provider and FE/ HE
institution’s duty to make reasonable adjustments. We would stress that
these measures are a vital mechanism for education providers to ensure
disabled people obtain the best education possible and reach their full
potential, and are clear that these measures need to be seen as part of
the package of support available to children with SEN and disabilities.
Avoiding discrimination and promoting equality supports the agenda of
improving attainment and progression for all pupils. Good education and
skills are crucial for opening up opportunities and increasing the chance
of an individual reaching their full potential.
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As the Green Paper makes clear, 6 to 7% of children have a disability33,
yet the number of children with statements of SEN is around 2.7%. As
three quarters of disabled children have SEN34, the figures suggest that
the majority of disabled children will not have a statement but will be on
school action or school action plus. For this reason it is vital that all
education providers are aware of their responsibilities under the Act.
In addition to not committing unlawful acts, schools have a duty to make
a reasonable adjustment to a provision, criteria or practice (PCP), where
these will have an impact on disabled pupils. Further and Higher
Education Institutions and Early Years providers have a duty to make
reasonable adjustments to PCPs, to adapt premises where necessary
and to provide auxiliary aids and services, as per s.20 of the Equality Act
2010.
A duty to make reasonable adjustments is an anticipatory one owed to
disabled people generally and not solely a duty that is measured in
relation to each individual person. This duty is also a continuing duty.
Education providers should keep the duty, and the ways they are
meeting the duty, under regular review in light of their experience with
disabled people. In this respect it is an evolving duty, and not something
that needs simply to be considered once and then forgotten. What was
originally a reasonable step to take might no longer be sufficient, for
example because the individual has a deteriorating condition.
The duty to make reasonable adjustments is not a minimalist
requirement of simply ensuring that some access is available to disabled
people; it is a duty, so far as is reasonably practicable, to approximate
the access enjoyed by disabled people to that enjoyed by all learners.
The purpose of the duty to make reasonable adjustments is to enable
disabled people access to an education as close as is reasonably
possible to the education normally offered to individuals at large.
Regarding schools, PCPs should be construed widely so as to include
for example, any formal or informal policies, rules, practices,
arrangements, criteria, procedures, activities or provisions. They can
cover one off decisions and actions. In simple terms, they are about the
way an education provider does things.
A school might have a PCP which places disabled pupils at a substantial
disadvantage. In such a case, the school must take such steps as it is
reasonable for it to have to take, in all the circumstances, to change the
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PCP so that it no longer has such an effect. This may simply mean
waiving a criterion, or amending a practice to allow exceptions, or
abandoning it all together. Often, such a change involves little more than
an extension of the flexibility and individual approach which most schools
already show to their pupils. The example below is taken from the
EHRC’s draft Equality Act 2010 Code of Practice for schools.
Example: A school has a uniform policy that states that pupils must wear grey
polyester trousers from a particular manufacturer. The trousers exacerbate a
disabled pupil’s severe eczema so the school amends the policy to allow the
pupil to wear cotton trousers of a similar style and colour. This would be a
reasonable adjustment to a provision, criterion or practice.
Example: A school has been allocated three places for students to represent the
school at a national youth conference on the environment. The school decides to
hold a debate on the topic to select the three pupils who will attend the
conference. This places a pupil with a nervous system disorder at a significant
disadvantage as he has trouble communicating verbally. The school modifies the
criteria to enable that pupil to submit his views and ideas on the issue in writing.
This is likely to be a reasonable adjustment to the school’s practice.
The duty for local authorities to draw up accessibility strategies and
schools to draw up accessibility plans for disabled pupils.
The Equality Act 2010, schedule 10, also specifies duties on local
authorities and schools to develop accessibility strategies and plans for
disabled pupils. The Commission is disappointed that the Green Paper
does not mention this duty. Schools are required to develop written
accessibility plans which will increase the access of disabled pupils to
the school curriculum to disabled pupils, improve the physical
environment for such pupils and improve the provision of information to
them. Plans must be implemented by schools after taking into account
disabled pupils’ disabilities and preferences expressed by them and their
parents.
Schools are required to make adequate resources available to carry out
these plans, and Ofsted can look at the performance of these duties by
schools in its inspection.
The public sector equality duty
This issue is mentioned very briefly in the Green Paper, and we would
like to see more coverage as it is a legal requirement for public
authorities, including education providers35, to eliminate discrimination
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and harassment, to advance equality of opportunity and to foster good
relations. This duty applies to maintained schools, free schools and
academies.
The duties are unique pieces of equality legislation, as they give public
authorities legal responsibilities to demonstrate that they are taking
action on equality in policymaking and the delivery of services. The
duties require these education institutions to take steps not just to
eliminate unlawful discrimination and harassment, but also to actively
promote equality.
The purpose of the equality duties is not to be process driven and
bureaucratic but rather to offer an outcome-based method of ensuring
that these institutions are best meeting the needs of all their pupils.
They require these institutions to have due regard to the need to:
 Eliminate discrimination, harassment, victimisation and any other
conduct that is prohibited by or under the Equality Act 2010.
 Advance equality of opportunity between persons who share a
relevant protected characteristic and persons who do not share it.
 Foster good relations between persons who share a relevant protected
characteristic and persons who do not share it.
By making it clear that the duty to eliminate discrimination, harassment
and victimisation is a public sector function will ensure that policies,
criteria and practices carried out by public sector bodies are nondiscriminatory in nature.
As the Equality Act 2010 states, having due regard to the need to
advance equality of opportunity between persons who share a relevant
protected characteristic and persons who do not share it involves having
due regard, in particular, to the need to:
 remove or minimise disadvantages suffered by persons who share a
relevant protected characteristic that are connected to that
characteristic;
 take steps to meet the needs of persons who share a relevant
protected characteristic that are different from the needs of persons
who do not share it;
 encourage persons who share a relevant protected characteristic to
participate in public life or in any other activity in which participation by
such persons is disproportionately low.
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The steps involved in meeting the needs of disabled persons that are
different from the needs of persons who are not disabled include steps to
take account of disabled persons’ disabilities.
Having due regard to the need to foster good relations between persons
who share a relevant protected characteristic and persons who do not
share it involves having due regard to the need to:
 tackle prejudice, and
 promote understanding.
Schools maintained by a local authority and Academies may wish to
consider using positive action to help them comply with the duty.
The Commission advises public bodies to prepare for the new duty by
gathering information and starting to consult and involve stakeholders
with regard to the new strands, which will help them begin to identify their
priorities for action.
Positive action provisions
We are concerned that the Green Paper did not mention positive action
provisions that an education establishment could undertake on behalf of
disabled people.
The Equality Act 2010 contains provisions which enable education
providers to take proportionate action to achieve fuller and more effective
equality outcomes for members of groups that are socially or
economically disadvantaged or excluded, or who otherwise face the
consequences of past or present discrimination or disadvantage.
These are known as the positive action provisions and are lawful even
where these actions involve discrimination against members of other
groups which might otherwise be unlawful. Such action could include
targeted provision, resources or putting in place additional or bespoke
provision to benefit a particular disadvantaged pupil group.
Individuals with protected characteristics may be disadvantaged for
social or economic reasons or for reasons to do with past or present
discrimination. The Act contains provisions which enable education
providers to take action to tackle the particular disadvantage, different
needs or disproportionately low participation of a particular pupil group,
provided certain conditions are met.
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Positive action is intended to be a measure that will allow education
providers to provide additional benefits to some pupils to address
disadvantage and is not the same as positive discrimination which is
unlawful.
These positive action provisions apply to all protected characteristics36,
but the Act also makes it clear that it is not unlawful direct disability
discrimination to treat a disabled person more favourably than a nondisabled person because of disability. This means that a school can, if
they wish, provide additional education, benefits, facilities and services to
disabled pupils, or offer them on more favourable terms, and this will be
lawful.
However, the positive action provisions may still be appropriate to
achieve equality of opportunity between disabled people with different
impairments. This means that a school can implement positive action
measures to overcome disadvantage, meet different needs or increase
participation of people with one impairment but not those with other
impairments.
Example: When deciding on what action to take under the public sector equality
duty, an academy analyses its data on attainment at key stage four and finds that
some disabled pupils are underachieving compared to other disabled pupils
when previous attainment is taken into account. The school sets an objective
under the duty to tackle the underachievement of disabled pupils with autism. In
order to achieve this they plan to undertake a range of activities including
communication and social skills development and support and additional classes
for children on the autistic spectrum. These activities act as positive action
measures and also contribute to meeting the duty to advance equality of
opportunity.
No mention of the proposed extension of the Reasonable
Adjustment Duty for disabled students to cover auxiliary aids, and
no update on when this will be brought into force.
The Equality Act 2010 extends the current reasonable adjustment duty
such that a school has a duty to make reasonable adjustments for
disabled pupils if a disabled pupil would be at a substantial disadvantage
in comparison with non-disabled pupils unless an auxiliary aid or service
is provided37.
The proposed extension of the reasonable adjustment duty to auxiliary
aids and services is not mentioned at any point in the Green Paper. The
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Commission considers that this is a crucial way for schools to support
children who ‘fall through the net’ in that they are not perceived as having
an SEN that requires additional support (i.e. their disability does not
directly impact on their education) but they do need additional aids or
services as a reasonable adjustment to enable them to participate fully in
school. So in some cases a child could benefit from reasonable
adjustments in addition to that provided under the SEN framework. Some
disabled pupils do not have special educational needs but if they
experience a substantial disadvantage for a reason related to their
disability the school may well be required to make reasonable
adjustments. This new requirement would ensure that pupils who have
medical needs that are not strictly SEN are able to fully participate in
mainstream education settings, which would make a substantial
difference to a significant number of pupils.
The Commission welcomes the legislative change set out in the Equality
Act 2010 extending the reasonable adjustment duty, to bring schools into
line with further and higher education institutions and service providers
(including early years providers), and we are very keen to ensure that it
is implemented effectively. In consultation with stakeholders for the
Equality Act 2010 Education Guidance, the view was that this measure
would not be a substantial burden on schools, as evidenced by the ease
of transition when this provision was placed on further education
settings.
The proposed extension of the duty to make reasonable adjustments will
require schools to take steps to ensure that disabled pupils can fully
participate in education, and that they can enjoy the other benefits,
facilities and services which schools provide for pupils. This duty will go
beyond simply avoiding discrimination, as it requires schools to
anticipate the needs of potential pupils for reasonable adjustments.
Some, but not all, disabled pupils will also be classified as having special
educational needs and may be receiving support via school-based SEN
provision or have a statement of SEN. The schools duties under the
Equality Act 2010 will not replace the duties of schools and local
authorities under Part 4 of the Education Act 1996 but are designed to sit
alongside these duties and ensure that disabled pupils receive the
support they require to fully participate in education irrespective of
whether or not they are classified as having special educational needs.
Page 23 of 49
The extent to which a pupil is being provided with support under Part 4 of
the Education Act 1996 is one of the factors to be taken into account
when considering what adjustments it is reasonable for a school to
make. Proposals to change the SEN system should identify how the new
arrangements will interact with the RA duty on schools and on the
proposed extension of that duty to include auxiliary aids and services.
As the body charged with producing the statutory Code of Practice for
Schools on the requirements of the Equality Act 2010, including the
proposed auxiliary aids provisions, the Commission is liaising on matters
of interpretation with the DfE, a timetable for a consultation, and
connected issues.
We are keen for schools and local authorities to be clear about what is
required and how the new arrangements can be delivered to improve
provision for young people with SEN and disabilities, once the duty
comes into force. For this reason further information is needed about the
status of implementation of the extended duty, and this information
should also be available for schools, parents and pupils as part of taking
forward proposals in the Green Paper.
The Government’s concern about a bias towards inclusion.
As stated above, the Commission strongly supports the inclusion of
disabled children in mainstream education settings. We support parental
choice of school where this choice is fully informed by evidence of
outcomes for disabled children in mainstream and special schools, and
the best interests of the child are also taken into account.
The Green Paper states:
“We will remove the bias towards inclusion and propose to strengthen parental
choice by improving the range and diversity of schools from which parents can
choose”.
The inclusion agenda for disabled young people is enshrined in the
UNCRPD, Article 24 and was developed to counter disadvantage and
discrimination resulting from segregated and second -class learning
opportunities for disabled people. Equality legislation has provided better
entitlement to learning provision, but our stakeholders point to evidence
of the high numbers of pupils with SEN statements educated in special
schools as evidence not of bias towards inclusion, but rather of
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discrimination, with parental choice for mainstream schools not being
met.
The statistical evidence regarding attendance at mainstream and special
schools for children with SEN38 suggests that the number of children
attending special schools compared to mainstream schools has not
changed significantly for a number of years.
The current proportion of children in maintained special schools and nonmaintained special schools is 1.12%. In 2006 it was 1.08 (this excludes
pupil referral units). This proportion altered little in the decade previous to
2006. The proportion of children with statements in special schools in
2010 is 97.6%. The increase in numbers of children attending special
schools is 1.6% between these years. During the same period the total
number of children attending all schools between 2006 and 2010 (i.e. the
total number of children of school age) fell by 1.85%. Also the number of
children with statements as a percentage of the total number of children
attending school fell from 2.9% to 2.7% between 2006 and 2010. So
even though there has been a slight increase in the proportion of children
attending special schools it is difficult to establish whether this is
statistically significant, due to the falling mainstream school roll and the
reduction of total numbers of statemented children.
According to Government statistics in 2010 the total number of children
who have statements and who are educated other than in school is 480,
out of a total of 26,490 (1.8%), the majority of whom were either being
educated through other arrangements made by the local authority (150)
or by parents (140), or were awaiting provision (160)39.
A more significant statistic is that the proportion of children with
statements who attend special school, as a proportion of all children with
statements, was 36.9% in 2006 and 40.1% in 2010. Also as an indicator
of the impact of a disabled child on family income, the proportion of
pupils under 16 eligible for free school meals in 2010 is 18.5%, whereas
the proportion of pupils under 16 attending special schools eligible for
free school meals in 2010 is 34.9%.
The data available shows that there has been no significant reduction in
the proportion of disabled children attending special schools in recent
years, as the evidence indicates that the numbers of children attending
special schools has increased by a small margin. This would suggest
Page 25 of 49
that there is not a ‘bias towards inclusion’ based on the numbers of
children attending mainstream and special schools.
We are concerned that the Government’s position on inclusion is a
significant shift from that stated under the previous administration, at the
time of ratification of the UN Convention on the Rights of Persons with
Disabilities (CRPD), in July 2009.
Article 24 cl.2 (a) and (b), is as follows:
(a) Persons with disabilities are not excluded from the general education system on
the basis of disability, and that children with disabilities are not excluded from
free and compulsory primary education, or from secondary education, on the
basis of disability.
(b) Persons with disabilities can access an inclusive, quality and free primary
education and secondary education on an equal basis with others in the
communities in which they live.
The UK Government issued an Interpretive Declaration on Article 24
cl.2(a) and (b) at that time:
The United Kingdom Government is committed to continuing to develop an
inclusive system where parents of disabled children have increasing access to
mainstream schools and staff, which have the capacity to meet the needs of
disabled children. The General Education System in the United Kingdom
includes mainstream, and special schools, which the UK Government
understands is allowed under the Convention.
An ongoing concern is that the declaration states that the UK
Government’s understanding of the Convention is that it allows for both
mainstream and special schools, and that these schools are both part of
the General Education System. The EHRC outlined our position on this
matter in a letter to Secretary of State for Children Schools and Families,
9 March 2009, from Baroness Jane Campbell, then an EHRC
Commissioner.
The Commission disagrees with the argument which suggests that segregated
schools by virtue of being part of the general education system are themselves
‘inclusive’ or that they provide an inclusive educational experience for disabled
children. Educating disabled children in an entirely separate environment from
non disabled children is evidently exclusive, even if it is done to meet needs
which cannot currently be met by some local mainstream schools.
This is a view shared by stakeholder organisations we have had contact
with, including disabled people’s organisations.
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The then Secretary of State for Children, Schools and Families stated
the following in response to our concerns40:
...we fully support the aims of the UN Convention to help ensure equality and
inclusion between disabled people and non-disabled people.
We see a vital and continuing role for special schools as part of an inclusive
education system...
.. where a decision is being made on a school placement for a child with a
statement of SEN, the child must be educated in a mainstream school unless this
is incompatible either with the wishes of the parent, or the provision of efficient
education for other children.
The Commission, along with the human rights commissions in Scotland
and Northern Ireland and a number of disabled people’s organisations,
made it clear at the time the Convention was ratified by the UK
Government, that the reservations and declaration made by the UK
Government on Article 24 are either unnecessary or invalid and should
be withdrawn41. It is also worth noting the decisions or plans of
Governments of similarly placed countries to Britain, including Australia,
New Zealand, Austria, France and Germany to ratify without any
declarations or reservations.
Bearing in mind our objections to the declaration, the Commission
considers the stated commitment of the previous administration to fully
support the aims of the CRPD, and to continue to develop an inclusive
education system, as positive statements.
We would like to know whether the Coalition Government is intending to
keep the interpretive declaration in place, and would also be keen to
establish the support the current Government has for the Convention as
it is not mentioned in the Green Paper at any point.
The Green Paper objective is radical reform to improve education
outcomes, and evidence of what works to achieve this should drive
proposals. While more evidence on this is needed, Ofsted has found that
the quality of education is key and that more good and outstanding
provision existed in resourced mainstream schools than in other types of
provision including special schools. Furthermore they reported findings
that:
There was little difference in the quality of provision and outcomes for pupils
across primary and secondary mainstream schools and special schools.
However, mainstream schools with additionally resourced provision were
Page 27 of 49
particularly successful in achieving high outcomes for pupils academically,
socially and personally’.42
Ofsted has recommended that:


Local authorities should evaluate and take full account of the impact of
provision and services on outcomes for children and young people before any
strategic re-organisation of services
Ensure that all pupils have opportunities to work alongside their peers in
mainstream provision.
In addition to education benefits of inclusion in mainstream settings, we
need to recognise that there are costs to society overall in segregating
disabled young people – and benefits in integration. Separation of
disabled people from mainstream education fuels prejudice, and
evidence from our Disability Harassment Inquiry has pointed to young
people being the major perpetrators of disability-related harassment.
The Commission strongly supports UNCRPD Article 24 based on
evidence that mainstream schooling with appropriate resourcing and
training of teachers is the way forward for improving education and life
outcome for disabled children, and for tackling prejudice to create a more
tolerant and integrated society.
While formulated some time ago, the Commission believes that the
statement below is still valid:
Mainstream schools with an inclusive orientation are the most effective means of
combating discriminatory attitudes, creating welcoming communities, building an
inclusive society and achieving education for all; moreover, they provide an
effective education for the majority of children and improve the efficiency and
ultimately the cost effectiveness of the entire education system.43
Criteria for having choice of schools met
We are concerned that the criteria set out may compound discrimination
and result in pupils with SEN statements being placed in special schools
with choices for mainstream schools being denied. Parents of children
with statements of SEN may be able ‘to express a preference for any
type of state-funded school including special schools, academies, free
schools, and have their preference met unless it would not meet the
needs of the child, be incompatible with the efficient education of other
children or be an inefficient use of resources.’ We question whether
these criteria are compatible with the requirements of the Equality Act
2010 in relation to access to schools. In addition, the criteria send the
Page 28 of 49
wrong signals to mainstream schools that they can refuse requests on
these grounds if they are able to marshal the necessary evidence.
We would like to consider each of these criteria in turn to explain why we
think they are problematic.
Firstly regarding the criterion that the education provided would not meet
the needs of the child. Given the fact that learning support and inclusive
learning environments still do not exist it many schools, it would be easy
for a mainstream school to argue that it is not suitable for a disabled
child, without giving proper consideration to what adjustments could be
made and what support is provided, and the desirability of that child
being educated alongside their non disabled peers.
Secondly regarding the criterion that the inclusion of a disabled child
would be incompatible with the efficient education of other children.
Again it can be very easy for parents of non-disabled children to think
that the best place for disabled children is segregated education,
because they see that there is such competition for teacher’s time and
other learning support, that there can be a view that disabled children
make ‘disproportionate’ demands on the mainstream system, so this
view must be challenged to avoid tacit discrimination.
Thirdly regarding the criterion that inclusion would be an inefficient use of
resources. Again where there is competition for limited resources it can
be easy to argue that disabled children are too expensive to educate in
mainstream school, yet the per capita cost of educating a child in special
education is much higher, so resources need to be better used to enable
all disabled children to have all, or as much as possible, of their
education in mainstream school.
Finally we would stress that decisions regarding these criteria need to be
made in a transparent and balanced manner, with information being
made available to of how decisions are made, by whom, and how the
decision process was taken forward.
Proposals to reduce the number of students with special
educational needs
The proposal in the Green Paper is to remove the two categories of
school action and school action plus, replacing it with a single 'schoolbased SEN category', which the Government states will mean fewer
Page 29 of 49
children are identified as having SEN. We understand that the
Government's thinking is based on evidence from Ofsted that as many
as half of all pupils identified for School Action would not be identified as
having special educational needs if schools focused on improving
teaching and learning for all.
It is worth mentioning, however, that Ofsted also stated:
As a whole, pupils currently identified as having special educational needs are
disproportionately from disadvantaged backgrounds, are much more likely to be
absent or excluded from school, and achieve less well than their peers, both in
terms of their attainment at any given age and in terms of their progress over
time. Over the last five years, these outcomes have changed very little. Past the
age of 16, young people with learning difficulties or disabilities comprise one of
the groups most likely not to be in education, employment or training.
The review team found that, despite extensive statutory guidance, the
consistency of the identification of special educational needs varied widely, not
only between different local areas but also within them. Children and young
people with similar needs were not being treated equitably and appropriately.
We share the concerns of stakeholders that there is under-identification
of some categories of special educational need. This point was
reinforced in a recent DfE commissioned research report44 on this issue,
To date there has been no consistent way of identifying and categorising
disabilities. Schools in England are currently required to collect data on children
with Special Educational Need (SEN), but this does not capture information
about all disabled children. The lack of this information may seriously restrict
capacity at all levels of policy and practice to understand and respond to the
needs of disabled children and their families in line with the ... Equality Act 2010.
This would include those who are performing at or near age-related
norms, who have undiagnosed dyslexia, dyspraxia, speech, language
and communication needs, autistic spectrum disorders and children with
health or other needs.
We recognise that it is not always appropriate to label a child as having a
special educational need when their learning difficulties could be
attributed to low school aspirations or poor teaching and addressed
through a range of other means, including better teacher-training, family
support or social services interventions. However, it is necessary to
ensure that needs are identified and that delivery of additional provision
is applied consistently. The current SEN framework provides a
mechanism for identification and delivery, and proposals for change must
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be sufficiently formulated to ensure that no child in need of support to
secure good education outcomes falls through the net.
The Commission also recognises that if SEN and disabilities are
identified more consistently this will not necessarily lead to a reduction of
children on school action and school action plus.
As part of our ongoing monitoring role, we will be collecting data on
these proposals as they go forward to see whether there is an increase
or decrease in discrimination against disabled children in education,
principally by monitoring disabled children's/ young people's attainment
and rates of exclusion in schools, and attainment and participation in
further/ higher education. We expect that the Department will similarly
monitor equality impact as part of its PSED duty.
Children and young people need to be given the opportunity to
actively participate in the assessment process, the development of
a programme of support, the budgeting process, and the review
process, as per the social model of disability.
The Commission is mindful of the commitment the Government made to
disabled children when it ratified the UN Convention on the Rights of
Persons with disabilities, specifically in Article 7(3), which states the
following:
States parties shall ensure that children with disabilities have the right to express
their views freely on all matters affecting them, their views being given due
weight in accordance with their age and maturity, on an equal basis with other
children, and to be provided with disability and age-appropriate assistance to
realise that right.
The Commission issued a guide on the CRPD for disabled people and
disabled people’s organisations in 201045, and made the following
statement about Article (3):
Governments should ensure that disabled children are supported to express their
views, and disabled children’s views are listened to and taken seriously.
This position would be consistent with children's status as rights bearers
under article 12 of the UN Convention on the Rights of the Child (CRC)
which provides that:
State parties shall assure to the child who is capable of forming his or her own
views the right to express those views freely in all matters affecting the child.....
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For this purpose, the child shall in particular be provided the opportunity to be
heard in any judicial and administrative proceedings affecting the child.
These Articles would suggest that children and young people with SEN/
disabilities should be able to trigger an assessment process, and there
should be a much greater focus on the participation of children and
young people in the process, moving towards ‘self-determined support’.
This is a move away from the deficit model of assessment and provides
a clearer focus on enabling, entitlement and reasonable adjustments,
following the ‘social model’ approach. Hence a key focus of the process
needs to be educational outcomes for the child. The views expressed
may well differ from the views of their parents, and it is necessary to
ensure that these views are always considered in the light of the child’s
best interests.
Children and young people should be involved in developing the plan
and agencies need to ensure adequate and appropriate provision/
support is available for young people to enable them to do this. They
should also be involved in the review process, and in general feel that
they have ownership (according to age and experience). Also children
and young people should be empowered to take control of their own
personal budget at an age/ ability appropriate stage.
It is also worth bearing in mind that those disabled children and young
people who do participate in decisions and issues that affect them are
usually the most able and articulate46, which is why such measures need
to be mainstreamed.
The proposed pilot giving a child an independent right of appeal for
SEN and disability discrimination claims.
The Commission welcomes the piloting of an independent right of appeal
for children regarding the SEN assessment and statementing process,
and the opportunity for disabled learners to appeal against an exclusion.
Bearing in mind that the pilots are to test whether the right to appeal is
something that children will use, the best way to handle these appeals
and the cost implications, we suggest that a number of measures need
to be put in place to ensure the pilots fully test out the new right.
In our previous response to Government on this issue, the Commission
indicated that children should have and be presumed competent to
exercise an independent right of appeal against permanent exclusion
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and SEN statement / assessment and also a right of claim in respect of
disability discrimination legislation from age 11 onwards. Younger
children should also have the right to bring own name appeals / claims
where they are able to demonstrate they understand the process and its
implications47.
We consider that it is key to ensure that children taking forward an
appeal on their own behalf have sufficient support and advocacy. To be
effective, advocacy services must be completely independent from local
authorities. This is particularly important for looked after children who at
the moment have their local authority acting both as parent and the body
against which the claim is brought. Advocacy is relevant and necessary
to all own name rights for young people given that research
demonstrates how access to appeals and claims currently is highly
dependent on parents who are articulate and well-resourced
representatives for their children48. Children may have views divergent
from those of their parents or the parents may, for a variety of reasons,
lack the resources to pursue an appeal or claim on the child's behalf.
Lack of advocacy services should not be a barrier to children in these
situations exercising independent legal rights.
Since the Children Act 2004 came into effect, local authority education
and social services for children are organised into a single children's
services department49. Because in SEN and disability discrimination
claims on behalf of a looked-after child a local authority children's
services department will need to bring an appeal against itself, in the last
5 years out of around 17,000 appeals only 53 have been brought on
behalf of looked-after children50 despite the over-representation of
children with SEN and /or who are excluded in the population of lookedafter children51.
Given the above, provision for independent and adequately resourced
advocacy must be embedded within the right of appeal and to claim if
this conflict of interest and its negative impact on looked-after children is
not to be replicated.
Changes to legal aid for First-tier Tribunals: no legal aid made
available parents to help them prepare appeals to the First Tier
Tribunal (SEN and Disability), or to appeal against an exclusion.
Page 33 of 49
The Government mentions in the Green Paper that they are proposing to
remove legal aid for parents challenging SEN and exclusion cases,
although it will remain available for disability discrimination cases. This
will lead to a reduction in the number of challenges to the First-Tier
Tribunal, so could impact on lower income families. It is being suggested
that where legal aid is removed, people might be able to apply a
‘conditional fee arrangement’. However this would not work with the First
Tier Tribunal considering SEN and disability as costs are normally not
awarded.
We are mindful of the proposals to reduce spending by local authorities,
to reduce the numbers of children receiving support from schools who
have SEN but no statement and the changes in powers of independent
review panels to reinstate excluded children with SEN (who are not
defined as having a disability as per the Equality Act 2010). This is
coupled with the increased likelihood that children with disabilities will be
receiving free school meals compared to their non-disabled peers, as
evidenced by recent Government information52, which indicated that the
proportion of children receiving free school meals in maintained nursery
and primary schools is 17.3% in 2010, in state-funded secondary schools
is 14.2% in 2010, and in maintained and non-maintained special schools
is at least twice the proportion, at 33.3%. These families and their
children are more likely to be currently eligible for legal aid when
challenging SEN decisions. We are also mindful of the overrepresentation of children with SEN in exclusion figures, as above, with
71% of excluded children having SEN.
For these reasons we consider that removing the opportunity to obtain
legal aid for parents challenging SEN cases and exclusion cases will
potentially undermine access to justice in relation to civil rights and
obligations, which is potentially in breach of Article 6(1) of the European
Convention on Human Rights. We are also concerned about the impact
on children who take forward a claim on their own behalf, and would be
keen to establish whether legal aid would be available in these
instances.
5. Responses to specific questions in the consultation
We have answered those questions where we have expertise based on
evidence and where we have roles and responsibilities as a regulator.
Page 34 of 49
Question 1: How can we strengthen the identification of SEN and
impairments in the early years, and support for children with them?
As is mentioned above, the Early Years Foundation Stage Profile found
that 15% of pupils with SEN achieve a good level of development
compared to 56% of pupils without SEN.
As is made clear in the Equality Act 2010 and the accompanying Code of
Practice, it is never unlawful to treat a disabled child more favourably
than a non-disabled child for a reason connected with their disability.
Early years providers and nursery schools should consider providing
additional education, benefits, facilities and services, or on more
favourable terms to disabled children, and such an approach should be
highlighted by the Department for Education as a way of closing gaps in
attainment between disabled and non-disabled children, in addition to
provisions made under SEN arrangements where applicable.
The reasonable adjustment duty that non-maintained early years
providers are required to follow includes auxiliary aids and services, and
is an anticipatory and continuing duty. It is vital that early years providers
are aware of their duties under the Equality Act 2010 to disabled pupils,
and we consider this is a necessary part of the support system.
Question 2: Do you agree with our proposal to replace the
statement of SEN and learning difficulty assessment for children
and young people with a single statutory assessment process and
an ‘Education, Health and Care Plan’, bringing together all services
across education, health and social care?
We agree with this proposal. However we are concerned that the
Education, Health and Care plan is only for children who reach the
statement threshold, so are keen to establish the process for those
children who would previously have been on school action/ school action
plus. As is indicated in the Green Paper, a significant proportion of
children are classified as disabled but do not have a statement, so it is
vital that their education and other needs are met. Where an education
provider is not providing equal treatment to a disabled person they may
be acting unlawfully.
We are also aware from our stakeholders that a proportion of children
are assessed as disabled, and receive support, as a consequence of a
Page 35 of 49
S17 Children Act 1989 assessment, so we would like clarity on how this
will fit into the new proposals.
The Commission would also like to know what requirements are to be
placed on health and social care providers, to ensure that they carry out
the plan in partnership with education providers effectively.
Question 3: How could the new single assessment process and
‘Education, Health and Care Plan’ better support children’s needs,
be a better process for families and represent a more cost-effective
approach for services?
Involvement of young people themselves must be an essential part of an
effective and responsive assessment process. (see page 25).
The objective of the plan – to provide support to enable the child to
achieve on comparable terms with non-disabled children – must drive
decision-making.
Question 4: What processes or assessments should be
incorporated within the proposed single assessment process and
‘Education, Health and Care Plan’?
Ofsted found that where the Common Assessment Framework was
being used alongside the SEN Code of Practice, there was more
consistency in assessment between agencies, support plans were more
coherent and access was fairer53. This is of particular relevance for
individuals and families who face multiple disadvantage, perhaps caused
by disability of other family members, ethnicity, or socio-economic
disadvantage. Also when a child has complex needs this approach has
been found to be more successful, in circumstances where a disability
which is difficult to diagnose or requires long periods of assessment, or
where other agencies need to assess support needs of children from
other agencies such as social care and health.
For this reason we would like to suggest that there is a process of
information sharing between the single assessment process and the
education, health and care plan and the common assessment process.
We would also like to stress that such processes of assessment and
planning need to be anticipatory and continuing, as is currently the case
for the reasonable adjustment duty for further and higher education
establishments, and service providers (including non-maintained early
Page 36 of 49
years providers), and we hope for schools, assuming the reasonable
adjustment auxiliary aids duty comes into force.
We are keen to ensure that the single assessment process does not
reduce services available to disabled children, in particular by increasing
thresholds for intervention by education, health and social care or by
increasing levels of bureaucracy between agencies. The plan needs to
be outcome focused, recognising the entitlements that disabled children
have to education as specified in the Equality Act 2010 and the CRDP.
Question 5: What is the potential impact of expanding the scope of
the proposed single assessment process and plan beyond
education, health, social care and employment?
In the Commission’s view, it is vital that a child with special educational
needs and/ or disabilities is considered within their family and social
context, to establish whether they face disadvantages due to other
factors such as ethnicity, health or disability of parents or carers, or other
factors leading to social exclusion. This is best achieved through a multiagency co-ordinated approach, and may establish where a child’s
educational difficulties are caused by factors other than a learning or
physical disability or difficulty. It is also of benefit to children who need
support from child and adolescent mental health services, as this is often
a requirement for children with behavioural, emotional and social
difficulties, particularly where they have not been statemented.
There should be co-ordination with wider welfare reform so that
decisions taken in the interests of the child in the Education Health and
Care plan are not undermined by decisions impacting on the family in
relation to wider support arrangements.
Question 6: What role should the voluntary and community sector
play in the statutory assessment of children and young people with
SEN or who are disabled? How could this help to give parents
greater confidence in the statutory assessment process?
While there is a potential role in providing independent advocacy to
children, young people and parents, it has to be recognised that this
costs money. We would question how this can be delivered when there
is evidence of disabled people’s organisations closing by the day through
lack of funds.
Page 37 of 49
Question 11: What information should schools be required to
provide to parents on SEN?
In addition to the information suggested, we recommend that parents
and pupils are made aware of their rights and the duties placed on
schools and other education providers by the Equality Act 2010.
Question 12: What do you think an optional personal budget for
families should cover?
Question 13: In what ways do you think the option of a personal
budget for services identified in the proposed ‘Education, Health
and Care Plan’ will support parents to get a package of support for
their child that meets their needs?
With the move towards personal budgeting for children with an
education, health and social care plan, whereby parents will have a
budget that they can use themselves to buy services, our first concern is
that parents will need support to use this money appropriately. Our
second concern is that it will only be available for children who reach the
Statement threshold. It is unclear what this will mean for funding for
children on school-based SEN, as budget ring-fencing has been
removed.
We are mindful of the need to ensure there is money available to schools
as a general fund for disabled children. This is to ensure that they can
fulfil the anticipatory nature of their reasonable adjustment duty, and to
satisfy planning requirements under Schedule 10 of the Equality Act
2010. This is explained in detail above, on pages 11 and 12.
We also are keen to make sure that the personal budget does not cause
any limitation or restriction on the school’s duty to make reasonable
adjustments, particularly where this includes auxiliary aids and services
as per the proposed extension of the duty. As is discussed above, a
factor that will be taken into account when considering what reasonable
adjustments to make will include whether any auxiliary aids or services
are being provided through the SEN framework, and we are keen to
make sure that this principle is maintained with personal budgets.
Page 38 of 49
Question 14: Do you feel that the statutory guidance on inclusion
and school choice, Inclusive Schooling, allows appropriately for
parental preferences for either a mainstream or special school?
We are keen to make sure that the statutory guidance on inclusion is
compliant with our responsibilities under the UN Convention on the
Rights of Disabled Persons, and would like reassurance from the
Government on this matter.
Question 16: Should mediation always be attempted before parents
register an appeal to the First-tier Tribunal (SEN and Disability)?
Question 17: Do you like the idea of mediation across education,
health and social care? How might it work best?
The Commission recommends that any mediation provided for parents
and children must include advocacy for both parents and children,
independent of the local authority. This will enable parents and children
to have their views fully considered in the process, and will ensure that
they can be fully supported throughout.
The Commission would like to highlight that that the courts have held
that any compulsion on a party to use alternative dispute resolution
approaches such as mediation would be regarded as an unacceptable
constraint on the right of access to the court and, therefore, a violation of
article 6(1) of the European Convention on Human Rights54, so it is
essential that mediation is offered as an alternative to a tribunal but not a
requirement.
Question 18: How can we ensure that the expertise of special
schools, and mainstream schools with excellent SEN practice, is
harnessed and spread through Teaching Schools partnerships?
Question 19: How can we ensure that we improve SEN expertise,
build capacity and share knowledge between independent
specialist colleges, special schools and colleges?
There is an important role for Ofsted and in sharing evidence of what
works to improve outcomes for disabled pupils.
Question 21: What is the best way to identify and develop the
potential of teachers and staff to best support disabled children or
children with a wide range of SEN?
Page 39 of 49
In the Green paper, there is the recognition that training for teachers is
inadequate. However, it is recommended that training
methods/strategies adopted focus on impairment and health condition.
The focus needs to be on inclusive teaching methods, i.e. ways of
removing systemic barriers and promoting best practice rather than a
medical model of disability training methods.
We would expect Governors and all school staff to be trained in the
requirements of the Equality Act 2010 including the public sector duty
and good equality practice. Training should also include a focus on the
key challenges facing disabled children and their teachers, so drawing
on evidence such as that set out in the Commission’s Triennial Review,
and analysis of school specific evidence on attainment and issues such
as bullying and exclusions. We would also expect teachers to be made
aware of best practice through CPD.
Question 32: What information would help parents, governors and
others, including Ofsted, assess how effectively schools support
disabled children and children with SEN?
To ensure effective support is put in place it is necessary to monitor the
progress of pupils with SEN and/ or disabilities, as well as establishing
how many pupils with SEN and/or disabilities are being excluded, either
fixed term or permanently. It is also essential to monitor the number of
disablist bullying incidents and change over time. We would recommend
that such measurements are in place and that this is made available to
parents.
We welcome the inclusion in the Education Bill currently going through
Parliament the requirement placed upon Ofsted to consider the extent to
which education provided at the school meets the needs of pupils with
SEN and/ or disabilities. We also do not want to see any regression on
current duties regarding equality, so would be keen to see the ‘limiting
judgment’ principle retained in the new inspection framework.
Question 33: What more can education and training providers do to
ensure that disabled young people and young people with SEN are
able to participate in education or training post-16?
As is made clear in the Equality Act 2010 and the accompanying Codes
of Practice, it is never unlawful to treat a disabled student more
favourably than a non-disabled student for a reason connected with their
Page 40 of 49
disability, so providers of over 16 education should consider providing
education, benefits, facilities and services on more favourable terms to
disabled students, and such an approach should be endorsed by the UK
Government as a way of improving the participation of disabled students
and closing gaps in attainment.
The Commission also suggests it is necessary for further and higher
education institutions to be particularly vigilant, to ensure that the
decisions they take to save money minimise unfairness and do not have
a disproportionately negative impact effect on disabled people. So for
example reducing support services to students may have a
disproportionately adverse impact on access, participation and
progression for disabled students55. The public sector equality duty
requires institutions to publish information about the engagement they
have undertaken with students including while developing their equality
objectives, as well as publishing information about evidence of the
analysis undertaken to establish whether their policies and practices
have improved access and outcomes for disabled students.
With the raising of the participation age to 18 by 2015, education
providers, delivery partners and support services will be required to
consider how to engage more effectively with disabled young people to
better support their progression in learning and into work.
Local authorities, public bodies and public sector education and
employment providers are required to take steps to meet the needs of
disabled people where these are different from people who are not
disabled, and must encourage disabled people participate any activity
where participation is disproportionately low. This will include ensuring
young disabled people who are not in education, employment or training
or are at risk of becoming so should prioritised.
Question 34: When disabled young people and young people with
SEN choose to move directly from school or college into the world
of work, how can we make sure this is well planned and who is best
placed to support them?
Disabled young people should have access to mainstream services that
support young people/children at relevant transition periods in their lives.
The Equality Act 2010 covers provision of services and employment, and
the making of reasonable adjustments so that disabled young people
Page 41 of 49
should have the same access and opportunities as people who are not
disabled for work experience placements, careers advice and other
provisions to support their transition from school to work.
The recently published Sayce Review56 has identified the following as
foundations for success for an enabling state:

Education, health and social care systems that raise the aspirations of disabled
people and their families, and prepare people from day one for a successful
transition (or retention) into sustainable employment and career paths.

Fair access to all routes into work, including work experience, internships,
apprenticeships, university, learning on the job schemes, and support for setting
up a business. For example...the move towards a portfolio of evidence for
apprenticeships to improve accessibility for talented people who have missed out
on earlier qualifications.
Question 36: How can employers be encouraged to offer
constructive work experience and job opportunities to disabled
young people and young people with SEN?
Providers of basic skills, work experience placements and apprenticeship
schemes should consider providing these services on more favourable
terms for disabled people. The providers could set targets for increasing
the numbers of disabled people, and Sector Skills Councils could
replicate the successful gender programme Pathways into Work, with
specific level 2 and 3 courses in those sectors where disabled
apprentices and trainees are under-represented. As apprenticeships are
considered employment for the purposes of the Equality Act 2010,
individuals on apprenticeship schemes are covered by third party
harassment provisions, so the employer/ provider is liable for
harassment of its employees by third parties, such as customers and
clients, over whom the employer does not have direct control, if the
harassment has occurred on at least two occasions. We would like to
see the UK Government taking steps to ensure that basic skills providers
and apprenticeship scheme providers are aware of these duties and put
measures in place to counteract discrimination and disadvantage.
Question 39: Do you agree that our work supporting disabled young
people and young people with SEN to prepare for adulthood should
focus on these areas: ensuring a broad range of learning
opportunities; moving into employment; independent living; and
transition to adult health services? What else should we consider?
Page 42 of 49
In addition to the areas identified, there is a need to ensure that PSHE
effectively supports disabled children throughout the transition that leads
to adulthood, dealing with issues that arise as a teenager for a disabled
child including, for example, relationships, sexual health and safety.
Question 40: We have identified three core features of the role of
local authorities in supporting children and young people with SEN
or who are disabled and their families: strategic planning for
services, securing a range of high quality provision, and enabling
families to make informed choices and exercise greater control
over services. Do you agree that these are the three core features of
the role of local authorities in supporting children and young
people with SEN or who are disabled and their families, or are there
others?
As is mentioned in the Green Paper, the current system places a duty on
the local authority to undertake an assessment of a pupil who has
statement of special educational needs and is going on to further or
higher education or training, under s.139A of the Learning and Skills Act
2000. In addition, local authorities also have the power to undertake an
assessment of those individuals who they consider would benefit from an
assessment. We consider that this duty and power are an essential part
of ensuring an individual has ongoing support. However there is
insufficient evidence to illustrate how well this process is being
undertaken and in particular whether those students who do not have a
statement of special educational needs, but are recognised as needing
support through the school action/ school action plus process, and/ or
may be disabled, are being assessed for learning needs.
Recent statistics show that disabled young people are considerably more
likely than non-disabled people to be not in education, employment or
training (NEET) after compulsory education57. The recent Youth Cohort
Study found that 29 per cent of disabled 18 year olds were NEET
compared to 12 per cent of non- disabled 18 year olds58.
A recently published report from the National Audit Office59 examining
support for people with autism shows that transition planning for disabled
young people has been generally poor. The report found that many local
authorities were unable to provide basic information on SEN and
transition arrangements for children with autism in their area. Although
data on children with autism who are at School Action Plus is collected
Page 43 of 49
routinely as part of the Schools Census, 21 per cent of local authorities
reported that they did not know how many children aged 14-16 fell into
this group. Only 45 per cent of local authorities said they knew how many
children with a statement of SEN had a completed transition plan. This
report evidences that local authorities are not well informed about the
transition and needs of children in their local area with a Statement of
SEN, let alone the needs of children and young people at School Action
or School Action Plus in need of support.
A recent case law ruling supports NAO’s findings. In the case of Alloway
v London Borough of Bromley 60 the judgement concluded that there
needed to be tighter control on the quality and compliance of s139A
assessments. The proper approach was for the local authority to satisfy
itself that the provision was available before concluding its assessment
and reporting.
Stakeholders have mentioned to us that the process of providing
disabled young people with a statement of SEN varies across local
areas. This means that in areas with low statementing rates, only those
disabled young people with a statement will receive a s139A assessment
as this is the limit of the local authority duty. Therefore a disabled young
person in one local area who has a statement would be legally entitled to
assessments whilst a disabled young person in a low statementing
authority would not have the same legal entitlement.
Also, forthcoming research for EHRC on Equality and Careers
Information, Advice and Guidance (IAG), All Things Being Equal,
provides evidence from recent policy reviews of inadequacies in the
ability of current careers provision to open up opportunities for young
people with disabilities and challenge low expectations and aspirations.
The report concludes that disabled people and young people with SEN
are not receiving the IAG they feel they need in order to pursue career
options, and more generally to help with transitions from education to
employment and adult life. Discouragement and disappointment is
reported as high among disabled young people. Some research
suggests that advice and guidance is insufficiently targeted at the
particular needs of disabled young people, including any additional
support needs.
Our position is that the duty to provide careers guidance should include
an equality requirement, to raise aspirations and challenge stereotypes,
Page 44 of 49
which we consider could make a significant difference to young people
with SEN and/ or disabilities.
Question 41: How can central government enable and support local
authorities to carry out their role effectively?
The Commission is of the view that to ensure all educational
establishments understand their duties, responsibilities and powers
under the Equality Act 2010 it is necessary for central government to
promote the Codes of Practice and accompanying Guidance to local
authorities and schools
6. Recommendations






The Commission would like the Green Paper (and subsequent policy
statements in this area) to state the protection available afforded by
the Equality Act 2010 to disabled people in education, in particular
that it is never unlawful to treat a disabled person more favourably.
The Commission would like the Government to state if/ when it is
intending to consult on the proposed extension of the reasonable
adjustment duty to cover auxiliary aids, and how they envisage this
new duty working with the new SEN assessment and plan.
The Commission is strongly in favour of inclusion of disabled pupils in
mainstream settings, and would like the Government to state whether
the policy towards inclusion has altered, and whether the UK
Government’s interpretive declaration on the UN Convention on the
Rights of Disabled Persons is going to be revoked or amended.
The Commission would like the Government to highlight that children
and young people have the right to actively participate in the
assessment process, the development of a programme of support,
and the review process, as is stated in various UN Conventions61.
The Commission would like the Government to ensure that the right
of appeal for children is genuinely effective, and that sufficient
support and independent advocacy are put in place in the piloting of
this new right to ensure it is fully tested.
The Commission would like the Government to reconsider its
decision to withdraw the right to apply for legal aid for parents and
children preparing an appeal to a First Tier Tribunal (SEN/ Disability).
Page 45 of 49




The Commission would like the Government to amend the Education
Bill, to include an equality requirement in the proposed statutory duty
for schools to secure independent impartial careers guidance.
The Commission would like the Government to amend the Education
Bill, to enable Review Panels to undertake external assessment and
to consider re-instatement, as this would have particular benefit
where it is established that a child has SEN or is disabled.
The Commission would like the Government to amend the Education
Bill, to require schools to record and report incidences of bullying
against all pupils with protected characteristics, including disabled
pupils.
The Commission would like the proposals for a personal budget to
include support for parents who undertake this role, and a
reassurance that these proposals will not have an impact on children
with SEN or who are disabled but do not have a statement, or on a
school’s ability to meet its requirements under the Equality Act 2010.
Page 46 of 49
7. References and Sources
1
European Convention on Human Rights, Protocol 1, Article 2.
How Fair is Britain? Equality, Human Rights and Good Relations in 2010. The First Triennial Review EHRC
2011.
3
From January to March 2011 there were 325 enquiries regarding disability and education. This amounts to 60%
of all education enquiries for this period. This contrasts with 66 inquiries about race and education.
4
This is established under Schedule 1, Part 5 of the Equality Act 2006, which provides for the Disability
Committee to have the authority to advise government about the likely effect of a proposed change of law.
5
The extension of the Reasonable Adjustment Duty to cover auxiliary aids and services is in Schedule 13,
paragraph 2 (2) of the Equality Act 2010. The most up-to-date information that we have is that this be brought
into force by the end of 2011.
6
Ofsted. Inclusion: does it matter where pupils are taught? 2006. HMI 2535
7
This is covered in detail in endnote 31.
8
For further details about this ongoing inquiry, please use the following link:
http://www.equalityhumanrights.com/legal-and-policy/inquiries-and-assessments/inquiry-into-disability-relatedharassment/
9
This term refers to schools maintained by the local authority, as well as academies and free schools.
10
Department for Children, Schools and Families and Office for National Statistics 2010
11
DCSF and ONS. 2010a
12
Jones 2010
13
National Equality Panel analysis of Labour Force Survey (2006-2008) 2008_UK_HiQ_tables.xls
14
National Equality Panel analysis of Labour Force Survey (2006-2008) 2008_UK_HiQ_tables.xls
15
Office for Disability Issues, Key facts and figures. Available at
http://www.officefordisability.gov.uk/research/facts-and-figures.php#11 . Accessed on 18/08/2010
16
Greater Expectations – Learners with disabilities. 2006 Adult Learning Inspectorate,
17
Equality Challenge Unit 2009. Table B8
18
Disabled students in higher education: perspectives on widening access and changing policy. Riddell, S.,
Tinklin, T. and Wilson, A. (2005) London: Routledge.
19
DfES 2003. Tables 3.31 and 3.32. Page 61
20
DfES 2003 Tables 3.A15 and 3.A16. Page 62
21
Staying on: making the extra years in education count for all young people. EHRC, (2009).
22
These statistics are taken from ILR/SFR 12 FE, WBL for young people, Train to Gain and Adult and
Community Learning – Learner numbers in England (October 2006; from the Office for National Statistics
Annual Population Survey for England (June 2006); and from the National Client Caseload Information System
(December 2006).
23
The amending Statutory Instrument is the Equality Act 2010 (Public Authorities and consequential and
supplementary amendments) order 2011, and the relevant regulation is 6(3).
24
DCSF and ONS, 2008. Section 3: Stay Safe
25
Bullying wrecks lives: the experiences of children and young people with a learning disability. Mencap 2006.
Page 3.
26
Mencap 2006. Page 6.
27
NFER Teacher Voice Omnibus, February 2010 Survey.
28
Prevention and response to identity-based bullying among local authorities in England, Scotland and Wales.
Tippett, N., Houlston, C., Smith, P.K. Unit for School and Family Studies, Goldsmiths, University of London.
2011. EHRC. The aims of the research is to establish the extent and effectiveness of local authorities’ and
schools’ actions to prevent and respond to prejudice-based bullying of young people both inside and outside of
school, on the grounds of disability, gender, gender identity, race, religion or belief or sexual orientation
29
Staying on: making the extra years in education count for all young people. EHRC, (2009).
30
How Fair is Britain? EHRC 2010. Page 344, box 10.5.1
2
Page 47 of 49
31
Prevention and response to identity-based bullying among local authorities in England, Scotland and Wales.
Tippett, N., Houlston, C., Smith, P.K. Unit for School and Family Studies, Goldsmiths, University of London.
2011.
32
Research indicates that pupils with learning difficulties experience a high incidence of bullying, with around
half of pupils surveyed reporting that the bullying they had experienced was related to their learning difficulty.
Norwich, B. and Kelly, N., (2004) Pupils’ views on inclusion: moderate learning difficulties and bullying in
mainstream and special schools. British educational Research Journal, 30, pp. 43-46.
Research also indicates that for children with specific language impairments, in considering children’s selfperception of the risk of bullying between mainstream and special education settings, there was no difference
found, suggesting that children with certain forms of disability are as likely to be bullied by disabled as by nondisabled children, in special or mainstream settings.
Knox, E., and Conti-Ramsden, G., (2003).Bullying risks of 11 year old children with specific language
impairment (SLI): does school placement matter? International Journal of Language and Communication
Disorders, 38, pp. 1-12.
33
Read, J. (2007) Can we count them? Disabled children and their households: Full research report. ESRC End
of Award Report. RES-000-22-1725.ESRC
34
Porter, J., Daniels, H., Georgeson, J., Hacker, J., Gallop, V., Feiler, A., Tarleton, B.,& Watson, D. (2008)
Disability data collection for children’s services. DCSF Research Report DCSF RR062. University of Bath,
University of Bristol
35
The relevant institutions that are required to follow the public sector equality duty are maintained schools, free
schools and academies (including nursery schools), and publicly funded further and higher education
institutions, as per Schedule 19 of the Equality Act 2010.
36
The protected characteristics are age, disability, gender reassignment, marriage and civil partnership, race,
religion or belief, sex and sexual orientation. Age discrimination does not apply to children in schools, and
marriage and civil partnership discrimination only applies in employment.
37
The relevant section of the Act, in Schedule 13, paragraph 2(2), is not yet in force. Our understanding is that
this will be consulted on soon and that it is likely to be brought into force by the end of 2011.
38
Statistical first release: schools, pupils and their characteristics, January 2010 (provision). Department for
Education.
39
Statistical first release: schools, pupils and their characteristics, January 2010 (provision). Department for
Education.
40
Reference 2009/0025543POSoS. Letter from Rt. Hon. Ed Balls MP, to Jane Campbell, Commissioner at the
EHRC. April 2009.
41
Equality and Human Rights Commission Guidance: The United Nations Convention on the Rights of People
with Disabilities - What does it mean for you? Summer 2010
42
Ofsted: Inclusion: does it matter where pupils are taught? 2006. HMI 2535
43
UNESCO Salamanca Statement, signed by 92 countries in 1994.
44
University of Bath (2010) Testing of disability identification tools in schools. DfE research report 025.
45
The United Nations Convention on the Rights of People with Disabilities: What does it mean for you? Equality
and Human Rights Commission Guidance, Summer 2010.
46
Franklin and Sloper (2007) Participation of disabled children and young people in decision-making relating to
social care, York: Social Policy Research Unit, University of York
47
This is the position outlined in our response to the DCSF’s consultation on giving children and young people a
right to appeal, July 2009.
48
K Runswick-Cole. The experiences of families who go to SENDIST Disability and Society Vol 22 no 3 May
2007 pp 315-328
49
The Children Act 2004 encouraged integrated planning, commissioning and delivery of children's services and
placed a new duty of local authorities to promote the educational achievement of looked after children
50
These figures were supplied (April 2008) by Rosemary Hughes, President of SENDIST but SENDIST does
not routinely collect information about whether the children for whom appeals are brought are looked after or
not.
51
27% of children in care have a statement of Special Educational Needs compared with 3% of all children Care
Matters Green Paper (2006)
Page 48 of 49
52
Statistical first release: schools, pupils and their characteristics, January 2010 (provision). Department for
Education.
53
The special educational needs and disability review: a statement is not enough. September 2010, Ofsted.
54
Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576
55
For further recommendations in this regard, the EHRC’s Making Fair Financial Decisions in Further and
Higher Education is a useful starting point:
http://www.equalityhumanrights.com/uploaded_files/EqualityAct/PSED/fair_financial_decisions_further_higher
_education.pdf
56
Getting in, staying in and getting on - Disability employment support fit for the future. Liz Sayce, June 2011,
DWP.
57
Disability Review, Leonard Cheshire Disability, 2008.
58
Youth Cohort Survey: The activities and experiences of 16 year olds: England and Wales, Department for
Children, Schools and Families, 2003.
59
Supporting people with autism through adulthood. National Audit Office, June 2009.
60
R (on the Application of Alloway) v London Borough of Bromley [2008] EWHC 2449 (Admin)
61
This principle is established in the UN Convention on the Rights of the Child and in the UN Convention on the
Rights of Disabled Persons.
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