2001 Chapter 10

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     These notes refer to the Special Educational Needs And Disability Act 2001 which received Royal Assent on 11 May 2001 (c.10 )

Special Educational Needs And Disability Act 2001

EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Special Educational Needs and Disability Act 2001 which received Royal Assent on 11 May 2001. They have been prepared by the Department for Education and Employment (DfEE) in order to assist the reader of the Act and help inform debate on it. They do not form part of the Act and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

SUMMARY

Territorial coverage

3.     The provisions in the Act relating to special educational needs (SEN) extend to England and Wales only.

4.     The provisions on rights for disabled people in education extend to England, Wales and Scotland since equal opportunities issues are matters reserved to the UK Parliament under the Scottish and Welsh settlements. The exception is the duty to produce an accessibility strategy or plan, which, although intended to help disabled pupils, primarily relates to the organisation and administration of schools and hence is a devolved matter. This aspect of the Act therefore does not extend to Scotland, and it will be for Scottish Executive Ministers to consider whether to apply this policy in Scotland. This planning duty does extend to Wales though it will be for the National Assembly for Wales (NAW) to consider implementation.

5.     This Act does not extend to Northern Ireland since responsibility for equal opportunities matters has been transferred and is now a matter for the Northern Ireland Assembly.

Part 1: Special Educational Needs

6.     The Government published a Green Paper in October 1997 entitled Excellence for All Children: Meeting Special Educational Needs (Cm 3785) (in Wales, The BEST for Special Education (Cm 3792)). Following consultation on the proposals set out in the Green Paper, the document Meeting Special Educational Needs: A Programme of Action was published in November 1998 in England, and Shaping the Future for Special Education was published in January 1999 in Wales. These documents set out the steps to be taken over a period of 3 years to implement the changes recommended in the Green Paper. Part 1 of the Act fulfils those undertakings made in the Programme of Action that required primary legislation and applies to England and Wales only.

7.     Part 1 makes changes to the existing legislation, in Part 4 of the Education Act 1996 (EA), for children with SEN. In summary, Part 1:

• strengthens the right of children with SEN to be educated in mainstream schools where parents want this and the interests of other children can be protected;

• requires Local Education Authorities (LEAs) to make arrangements for services to provide parents of children with SEN with advice and information, and a means of resolving disputes with schools and LEAs;

• requires LEAs to comply, within prescribed periods, with orders of the Special Educational Needs Tribunal (SENT) and make other technical changes in support of the SENT appeals process and the statementing process; and

• requires schools to inform parents where they are making special educational provision for their child and allow schools to request a statutory assessment of a pupil's SEN.

8.     The SENT, by virtue of the amendments made in Part 2 of this Act, becomes the Special Educational Needs and Disability Tribunal (SENDIST).

Part 2: Disability Discrimination in Education

9.     The Government announced, in October 1997, that it would establish a Disability Rights Task Force (DRTF) to advise it on how to secure comprehensive and enforceable civil rights for disabled people.

10.     The DRTF was established in December 1997, comprising representatives of disability organisations, business, trade unions, local government and the health service, from across the UK.

11.     The DRTF reported on the role and function of a Disability Rights Commission (DRC) in April 1998. In October 1998, the Government published a White Paper entitled Promoting Disabled People's Rights: Creating a Disability Rights Commission fit for the 21st Century (Cm 3977). The Disability Rights Commission Bill received Royal Assent in July 1999. The DRC has been up and running since 25 April 2000.

12.     The final report of the DRTF From Exclusion to Inclusion was published on 13 December 1999 and covered all aspects of disabled people's lives: defining disability, education, employment, access to goods and services, travel, housing and the environment, participation in public life and local government, health and social services. Part 2 of the Act addresses the key education recommendations of the report that required primary legislation and amends Part 4 of the Disability Discrimination Act 1995 (DDA) to introduce rights for disabled people in education.

13.     Publicly-funded providers of education services and private schools are currently exempted from Part 3 of the DDA by virtue of sections 19(5)(a) to (ab) and 19(6) of that Act. These provisions are repealed by this Act and the exemption removed. The effect of this is that any provider of education previously exempted from Part 3 and not covered by the new Part 4 duties becomes subject to the duties in Part 3 of the DDA.

Chapter 1 of Part 2: Schools

14.     This Chapter places new duties on LEAs and schools (including independent schools and non-maintained special schools) in England and Wales and on Local Authorities (LAs), independent schools, self-governing schools and grant-aided schools in Scotland. The new duties are explained in the commentary on sections 11 - 16. What follows is an overview of the new provisions:

     In England, Scotland and Wales

• a duty not to treat disabled pupils less favourably, without justification, for a reason which relates to their disability;

• a duty to make reasonable adjustments so that disabled pupils are not put at a substantial disadvantage compared to pupils who are not disabled (but there is no duty to remove or alter physical features or provide auxiliary aids and services); and

     In England & Wales only

• a duty to plan strategically and make progress in increasing accessibility to schools' premises and to the curriculum, and in improving the ways in which written information provided to pupils who are not disabled is provided to disabled pupils.

Chapter 2 of Part 2: Further & Higher Education

15.     This Chapter places new duties on further education institutions, higher education institutions, and LEAs in respect of adult education and youth services provision secured by them. The new duties are explained in the commentary on sections 26 - 29. What follows is an overview of the new provisions:

• a duty not to treat disabled students less favourably, without justification, for a reason which relates to their disability; and

• a duty to make reasonable adjustments to ensure that people who are disabled are not put at a substantial disadvantage compared to people who are not disabled in accessing further, higher and LEA secured education.

Chapter 3 of Part 2: Miscellaneous

16.     The DRC has functions in respect of the new legislation akin to those conferred upon it, by virtue of the Disability Rights Commission Act 1999 (DRCA), in respect of Parts 2 and 3 of the DDA. The DRC will prepare new Codes of Practice to explain the legislation to providers of education, disabled people and others.

BACKGROUND

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.

Special Educational Needs (England and Wales)

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.

Disability Discrimination in Education

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.

OVERVIEW

36.     The Act is in three Parts and has 43 sections and 9 Schedules:

37.     Part 1 makes changes to the existing SEN framework in Part 4 of the EA.

38.     Part 2 deals with disability discrimination in education and amends Parts 3 and 4 of the DDA.

Part 2 contains three chapters:

• Chapter 1: Schools

• Chapter 2: Further and Higher Education

• Chapter 3: Miscellaneous

39.     Part 3 deals with matters supplementary to Parts 1 and 2 of the Act.

INTERPRETATION

40.     There are a number of defined words and expressions in the Act.

41.     Where there is no indication that a definition is intended to apply to a group of provisions, a Part of the Act or the Act as a whole, it applies only for the purposes of the section or Schedule in which it appears.

42.     Some of the words and expressions that are defined just for the purposes of the particular provision in which the definition occurs are used (and defined separately) in other provisions — where they may have a different meaning. For example "relevant school" is defined separately for the purposes of the provisions inserted in the EA by sections 3 and 8.

43.     Chapters 1 and 2 of Part 2 of the Act (sections 25 and 33 respectively) insert separate interpretation sections into each of Chapters 1 and 2 of Part 4 of the DDA which define words and expressions which apply across each of those Chapters respectively.

44.     ANNEX 1 contains a glossary of terms and abbreviations used in these notes.

COMMENTARY ON SECTIONS

PART 1 - SPECIAL EDUCATIONAL NEEDS

Sections 1 to 10 and Schedules 1 & 8

Section 1: Education in mainstream schools of children with special educational needs

45.     The section replaces the existing section 316 EA and strengthens the right to a mainstream place for children with SEN. This seeks to enable greater inclusion and safeguard the efficient education of all pupils.

46.     Section 316(2) ensures that pupils with SEN but without a statement are educated in mainstream schools. Section 316(3) ensures that pupils with SEN and a statement are educated in mainstream schools unless this would be incompatible with parental choice or with the provision of efficient education for other children. This means an LEA does not have to provide a mainstream place where parents do not want one. In practice, incompatibility with the efficient education of others is likely to be where pupils present severe challenging behaviour that would significantly disrupt the learning of other pupils or place their safety at risk. Section 316(4) defines what constitutes a mainstream school. For the purposes of this section, City Technology Colleges (CTCs), City Colleges for the Technology of the Arts (CCTAs) and City Academies (CAs) (which are independent schools) are mainstream schools.

47.     The section also inserts a new section 316A in the EA which ensures that the new provisions work alongside the existing provisions of the EA. Section 316A(1) allows a child with SEN to be educated at an independent school (whether or not it is a mainstream school), or a non-maintained special school where the LEA are not funding the placement. Without this sub-section parents of children with SEN but without statements would not be able to choose to send their child with SEN to an independent or non-maintained school special school at their own expense. This would be incompatible with the Human Rights Act 1998. Section 316A(2) sets out the exceptional circumstances in which a child with SEN but without a statement can be educated at a special school. The section reflects existing arrangements for maintained special schools i.e. children without statements can be placed in special schools if they are being assessed for a statement, or their circumstances have changed suddenly and the head teacher (or governing body in Wales), parents, LEA and (when the child is admitted for an assessment) those providing advice agree, or if a child is in hospital and so is attending a hospital special school. Section 316A(2)(b) provides that regulations can prescribe circumstances in which a child, admitted for the purpose of assessment, can remain in a special school after the assessment is carried out. It is envisaged that these regulations will deal with the child's position in the period after the assessment is carried out but before any decision is taken about whether a statement is necessary, and once any decision about a statement is made.

48.     Sections 316A(3) and (4) explain how the new section 316 interacts with Schedule 27 to the EA (making and maintenance of statements). Section 316A(3) ensures that section 316 does not affect the operation of paragraph 3 of Schedule 27 (parent's right to express a preference for a maintained school) or section 348 (provision of special education at non-maintained schools). LEAs will not be prevented from naming independent or non-maintained special schools in statements by the requirement to educate children with SEN in mainstream schools. Parents continue to have the right to make representations for a non-maintained school to be named in their child's statement and, where the LEA agree, they must fund the placement in a non-maintained school. Section 316A(4) makes it clear that if an LEA do not name the parent's choice of maintained school in a statement their choice of school is governed by the provisions of section 316. Sections 316A(5) and (6) further strengthen the right to a mainstream place by requiring schools and LEAs, when seeking to demonstrate that inclusion would be incompatible with the efficient education of other children, to show that there are no reasonable steps they could take to prevent the inclusion of a child with a statement from having that effect. Section 316A(7) means that if an LEA have named a maintained school in a statement (and so the child must be admitted in accordance with section 324) the school cannot subsequently rely on the exception in section 316(3), i.e. that the child's inclusion would be incompatible with the efficient education of other children. Section 316A(8) requires schools and LEAs to heed guidance about section 316 and section 316A to be provided by the Secretary of State in England and, in Wales, the NAW. Section 316A(9) provides that the guidance must in particular include advice on reasonable steps maintained schools and LEAs should consider to prevent inclusion being incompatible with the efficient education of other pupils. The effect of Section 316A(10) is that regulations for Wales made under section 316A will be made by the NAW. Section 316A(11) explains what "authority" means in the section.

Section 2: Advice and information for parents

49.     This section amends the EA by inserting a new section 332A to place a duty on LEAs to make arrangements for providing information on SEN matters to parents of children in their area who have SEN. These are normally known as parent partnership services. Most LEAs already provide such services but there is no legal requirement on them to do so. The new duty does not mean that LEAs will have to provide the services themselves; they might, for example, decide to contract with a provider from the voluntary sector.

50.     In making these arrangements LEAs must heed guidance issued by the Secretary of State or, in Wales, the NAW. The revised SEN Code of Practice will give guidance on parent partnership services. LEAs must publicise to parents and schools, in their area, the fact that the services are available and must inform other interested parties.

Section 3: Resolution of disputes

51.     This section amends the EA by inserting a new section 332B and provides an additional means of resolving disagreements between parents and the LEA and/or schools. It also introduces a new mechanism to seek to prevent such disputes. The new arrangements are intended to provide an informal forum for exploring differences, identifying points of agreement and disagreement and to find a way forward that all parties accept. Section 332B(3) requires LEAs to appoint an independent person (not part of the school or LEA decision-making process) to facilitate the avoidance or resolution of disputes. In practice, this will often be someone from the voluntary sector. Section 332B(4) requires LEAs to take heed of any guidance issued by the Secretary of State or, in Wales, the NAW when making the arrangements. It is intended that Chapter 2 of the revised SEN Code of Practice will provide this guidance.

52.     Section 332B(5) requires LEAs to ensure that parents and schools in their area are made aware of dispute prevention and resolution arrangements. LEAs must also inform such other interested parties as they deem appropriate. Section 332B(6) provides that parents who take advantage of these new arrangements will not lose any existing legal rights to lodge an appeal with the SENT.