Appendix 1 - legislative basis
Definition of disability and special educational needs
Disability:
The Equality Act 2010 defines a disability as when a person has a physical or mental impairment:
- which is substantial and long-term (for over a year)
- which has an adverse effect on their ability to carry out normal day-to-day activities
This broad definition covers physical disabilities, sensory impairments, such as those affecting sight or hearing, learning disabilities and some specified medical conditions.
Special Educational Needs (SEN):
The SEND Code of Practice 0 to 25 states that:
A child or young person has SEN if they have a learning difficulty or disability which calls for special educational provision to be made for him or her. A child of compulsory school age or a young person has a learning difficulty or disability if he or she:
- has a significantly greater difficulty in learning than the majority of others of the same age or;
- has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions
The broad areas of need described are:
- Communication and interaction
- Cognition and learning
- Social, emotional and mental health
- Sensory and/or physical
The Equality Act 2010
The General or Public Sector Equality Duty:
Section 149 the Equality Act 2010 introduces a single general duty (sometimes referred to as the Public Sector Equality Duty or PSED) that applies to public bodies, including county councils and all educational settings.
The General Duty (PSED) extends to all aspects of a person's identity. These aspects are known as `protected characteristics` and include race, disability, sex, age, religion or belief, sexual orientation, gender reassignment, marriage and civil partnership, pregnancy and maternity.
The three main elements of the general duty are, that in carrying out their functions, public bodies are required to have due regard to:
- eliminating discrimination and other conduct that is prohibited by the Act
- advancing equality of opportunity between people who share a protected characteristic and people who do not share it
The Specific Duties of the Equality Act:
The main specific duties are:
- not to treat pupils/students with SEND less favourably
- the reasonable adjustments duty - to take reasonable steps to avoid putting pupils/students with SEND at a substantial disadvantage.
The reasonable adjustments duty (schedule 13 of the Equality Act 2010):
The duty to make reasonable adjustments requires schools to take positive steps to ensure that pupils/students with SEND can fully participate in the education provided by that setting, and that they can enjoy the other benefits, facilities and services provided for all pupils/students.
The 2010 Act sets out three requirements in relation to reasonable adjustments:
- where a provision, criterion or practice of a school puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage
- where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage
- where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid
Many reasonable adjustments are inexpensive and will often involve a change in practice rather than the provision of expensive pieces of equipment or additional staff.
Anticipating reasonable adjustments
A school's duty to make reasonable adjustments is an anticipatory one and therefore the setting needs to make plans in advance about what pupils/students with SEND might require and what adjustments might need to be made. They should not wait until the pupils/students are on roll.
Auxiliary aids and services
In September 2012 the duty to provide auxiliary aids and services (including specialist equipment which could include laptops and tablets) was extended to include schools. This places schools under a duty to provide aids and services where it is reasonable and where it would prevent a disabled pupil being put at a substantial disadvantage when compared to his or her non-disabled peers. The exception to this duty is where the aid or service is specified in a statement of SEN or an Education, Health and Care Plan in which case the responsibility to provide the aid or service lies with the LA.
Examples of auxiliary aids include coloured layovers, pen grips, adapted physical education equipment, adapted keyboards and computer software.
The relevant Local Authority support team will provide appropriate training and support in the use of auxiliary aids.
Overcoming disadvantage
Where something an educational setting does places a pupil/student with SEND at a disadvantage, compared to other pupils/students, then the setting must take reasonable steps to try and avoid that disadvantage.
SEND Information Report
The SEND Code of Practice 0 to 25 (reference pages 17 and 91) states that a school's reasonable adjustments, along with other provisions, must be described in their SEN Information Report. The SEN Information Reports for schools in Southend can be found on schools websites.
School Accessibility Plans
Schools must also publish Accessibility Plans. The Accessibility Plans should be appended to or be part of the SEN Information Report.
The Children and Families Act 2014 and the SEND Code of Practice 0 to 25
The Children and Families Act came into force on the 1st September 2014. Part 3 of this Act and associated regulations reformed the duties, policies and procedures relating to children and young people with SEND.
The SEND Code of Practice 0 to 25 provides statutory guidance relating to Part 3 of the Children and Families Act. The SEND Code of Practice: 0-25 promotes inclusive education and describes how the Equality Act.2010 and the Children and Families Act, 2014 work together to ensure this:
As part of its commitments under articles 7 and 24 of the United Nations Convention of the Rights of Persons with Disabilities, the UK Government is committed to inclusive education of disabled children and young people and the progressive removal of barriers to learning and participation in mainstream education. The Children and Families Act 2014 secures the general presumption in law of mainstream education in relation to decisions about where children and young people with SEN should be educated and the Equality Act 2010 provides protection from discrimination for disabled people.
Admissions:
The SEND Code of Practice emphasises that educational settings including further education establishments must not have discriminatory admissions policies. It states that:
The Equality Act 2010 prohibits schools from discriminating against disabled children and young people in respect of admissions for a reason related to their disability.
Where a child or young person has SEN but does not have an Education Health and Care Plan they must be educated in a mainstream setting except in specific circumstances set out in the SEND Code of Practice 0 to 25
Putting the child/young person with SEND and their family at the centre:
The SEND Code of Practice 0 to 25 states that local authorities must have regard to:
- the views, wishes and feelings of the child or young person and their parents
- the importance of the child or young person and their parents participating as fully as possible in decisions; and being provided with the information and support necessary to enable participation in those decisions
- the need to support the child or young person, and their parents, in order to facilitate the development of the child or young person and to help them achieve the best possible educational and other outcomes, preparing them effectively for adulthood.
and that local authorities must ensure the following:
- the participation of children, young people and their parents in decision making
- the early identification of children and young people's needs and early intervention to support them
- greater choice and control for young people and parents over the support they receive
- collaboration between education, health and social care services to provide support
- high quality provision to meet the needs of children and young people with SEN
- a focus on inclusive practice and removing barriers to learning successful preparation for adulthood, including independent living and employment
Key legislation and guidance references
The Equality Act 2010 and schools - departmental advice for school leaders, school staff, governing bodies and local authorities
Reasonable adjustments for disabled pupils (2012) - technical guidance from the Equality and Human Rights Commission
Supporting pupils at school with medical conditions (2014) (DFE)
Children and Families Act 2014
The Special Educational needs and Disability Regulations 2014
SEND Code of Practice 2014 revised 2015
The Mental Capacity Act Code of Practice: Protecting the vulnerable (2005)