17.The following paragraphs provide a brief description of the legislative framework before this Act comes into force as it applies to SEN and disability discrimination.
18.The legislation relating to SEN is contained in Part 4 of the EA (ss.312 - 349, Schedules 26 and 27). This has been amended by the School Standards and Framework Act 1998 (SSFA) to amend the references to the categories of schools. There is a statutory code of practice (the Code of Practice on the Identification and Assessment of Special Educational Needs) to which LEAs, governing bodies, health and social services and the SENT must have regard when exercising their functions under Part 4 of the Act. There was a consultation on a revised draft of this Code from 7 July to 13 October 2000. The aim is to publish the final version of this Code to come into force from September 2001.
19.A child has SEN if he has a learning difficulty which calls for special educational provision to be made for him (s.312). A child, for the purposes of the SEN provisions, includes any person under the age of 19 who is a registered pupil at a school.
20.About 20% of children will have some form of SEN at some time. Most of these children will have their needs met by their school, but around 3% of children will have severe or complex needs which will require the LEA to determine and arrange for the special educational provision for the child by means of a statutory statement of SEN.
21.It has always been intended that as many children with SEN as possible can be included within mainstream rather than special schools, whilst recognising the importance of the specialist sector. There is a duty in section 316 of the EA to secure that a child is educated in a mainstream school, unless that is incompatible with the wishes of the parent, provided that three conditions are satisfied: that this is compatible with (i) his receiving the special educational provision his learning difficulty calls for; (ii) the provision of efficient education for the children with whom he will be educated; and (iii) the efficient use of resources.
22.School governing bodies have a duty (s.317) to use their best endeavours to see that pupils with SEN at their schools receive the special educational provision their learning difficulties call for.
23.The LEA must keep their arrangements for special educational provision under review (s.315). They have a duty (s.321) to secure that they identify children within their area who have SEN and the LEA need to determine the special educational provision for which their learning difficulty calls.
24.Where an LEA are of the opinion that a child has SEN and that it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for, the LEA will make an assessment of the child, to decide whether a statement of SEN should be made for the child (s.323).
25.Once the assessment of the child's needs has been completed, the LEA will decide whether it is necessary for them to make and maintain a statement of the child's SEN (s.324).
26.If the LEA decide to make a statement, the statement must be in the form prescribed by the Schedule to the Education (Special Educational Needs) Regulations 1994 (revised regulations are planned to come into force at the same time as the revised SEN Code of Practice). Any statement made by the LEA must give details of the assessment of SEN and specify the special educational provision to be made. The special educational provision must include the type of school, or other institution, which the LEA considers would be appropriate, the name of the school preferred by the parents if this has to be named in accordance with Schedule 27 or, if none, the name of any school the LEA considers should be specified, and any provision for which arrangements are made otherwise than in a school, for example, occupational therapy.
27.The SENT considers parents' appeals against the decisions of LEAs in England and Wales about their children's SEN, if parents cannot agree with the LEA. The SENT considers appeals about refusals to assess, refusals to make statements, the contents of statements and decisions to cease to maintain statements. The constitution of the SENT is provided for in section 333 of the EA. There is a President and a chairmen's panel appointed by the Lord Chancellor and a lay panel appointed by the Secretary of State for Education and Employment or (as appropriate) the NAW. Each Tribunal consists of a chairman and two lay members. The procedure of the Tribunal is set out in the Special Educational Needs Tribunal Regulations 1995 made under section 336 of the EA. The Special Educational Needs Tribunal Regulations 2001 have been laid before Parliament and will, unless annulled, come into force on 1 September 2001.
28.The DDA makes it unlawful to discriminate against disabled people in relation to employment, the provision of goods, facilities and services, buying or renting land or property and certain aspects of transport. The DDA applies to the whole of the United Kingdom.
29.The DDA excludes publicly-funded education and private schools from the scope of the goods and services provisions. Private providers of education and training do, however, fall within the scope of these provisions, although voluntary organisations providing activities designed to promote personal or educational development are excluded by the Disability Discrimination (Services and Premises) Regulations 1996. Nonetheless, these providers of education services still have duties to disabled people in three main areas:
employing staff (Part 2);
providing non-educational services to the public (Part 3);
publishing information about arrangements for disabled pupils and students.
30.Part 2 of the DDA applies to employers with 15 or more employees and provides that discrimination occurs when:
a disabled person is treated less favourably than someone else and the treatment is for a reason relating to the person's disability and that reason does not, or would not, apply to others; and
this treatment cannot be justified.
31.Less favourable treatment will be justified only if the reason for it is material and substantial and there is no adjustment which would enable the disabled person to do the job concerned or take up another vacant position. To enable a disabled person to do their job, employers may have to make reasonable adjustments to their employment arrangements or premises if these substantially disadvantage a disabled person compared to a person who is not disabled.
32.Under Part 3 of the DDA, unlawful discrimination against disabled people occurs when:
a service provider refuses them service; or
provides them service on worse terms; or
provides a lower standard of service; or
fails to comply with a duty to make a reasonable adjustment if it is impossible or unreasonably difficult for a disabled person to access any such service; and
in each case this treatment or failure to make an adjustment cannot be justified.
33.Less favourable treatment will be justified only if the reason for it is: to avoid endangering the health and safety of any individual; that the disabled person is incapable of entering into an enforceable agreement or of giving informed consent; that the service provider would otherwise be unable to provide their service to the disabled person and/or other members of the public. In each case, it must also be reasonable for the service provider to hold that opinion. Service providers must take reasonable steps to change policies, practices or procedures which make it impossible or unreasonably difficult for a disabled person to use a service, provide auxiliary aids or services to enable them to use a service and overcome physical barriers by providing a service by a reasonable alternative method.
34.There are also obligations on LEAs, in relation to further education (s.528 EA) and governing bodies of LEA maintained schools (s.317(6) EA) to give information about facilities for disabled people and
the Learning and Skills Council (LSC) in England and the National Council for Education and Training in Wales (CETW) may require institutions in the further education sector to give such information as a condition of grant (sections 6 and 35 of the Learning and Skills Act 2000 (LSA)); and
Higher Education Funding Councils must require institutions in the higher education sector to give such information as a condition of grant (section 65 of the Further & Higher Education Act 1992).
It is also possible for the LSC in England and the CETW in Wales to impose conditions on further education institutions relating to their provision for disabled pupils.
35.Statutory guidance about the DDA can be found in the following publications:
“DDA 1995: Guidance on Matters to be Taken into Account in Determining Questions Relating to the Definition of Disability.” ISBN 0-11-270955-9.
“DDA 1995: Code of Practice for the Elimination of Discrimination in the Field of Employment Against Disabled Persons or Persons who have had a Disability.” ISBN 0- 11-270954-0.
“DDA 1995: Code of Practice: Rights of Access - Goods, Facilities, Services and Premises.” ISBN 0-11-271055 -7.
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