Inclusion, equality and the law

Written by: Navin Kikabhai | Published:
Image: iStock

There are a range of statutory requirements that all schools must meet to ensure the inclusion of children and young people with disabilities and SEN. Navin Kikabhai looks at what the law requires and offers best practice advice

At ALLFIE – the Alliance for Inclusive Education – we are conducting research with Sheffield University this year on whether the school accessibility plans required by the Equality Act 2010 are actually making schools more accessible for disabled children.

This research, funded by DRILL (Disability Research into Independent Living and Learning) springs from our wider concern that disabled children’s right not to be discriminated against is being neglected due to funding cuts, structural disadvantages, legislative inconsistencies, lack of enforcement, the rhetoric of parental choice, and the drive for so-called excellence.

The language of SEN can obscure the fact that most, though not all, children with SEN fall under the protection from discrimination provided by the Equality Act 2010, and not just the Children and Families Act 2014 and SEND Code of Practice 2015.

The Act’s definition of disability is broad and includes more children than many realise. It defines a person as disabled “if he or she has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities”.

Long-term means 12 months or more, not necessarily continuous, and the definition is based on functional assessment, not medical diagnosis. It includes impairments such as autism, ADHD or mental health difficulties, sight or hearing impairments, and long-term health conditions like epilepsy and cancer. Children with such conditions do not necessarily have SEN, but there is a significant overlap.

There are expectations set by the Code of Practice that disabled children and those with SEN should have the same opportunities as others and not experience barriers to learning or participation, and the Children and Families Act 2014 sets the presumption that children with SEN should be in mainstream. So where does this all leave schools in practice?

Admissions

Schools must not discriminate against disabled children in admissions for a reason related to their disability either directly or indirectly – for instance if a child is incontinent due to an impairment. Children with SEN but no Education Health and Care Plan (EHCP) must be in mainstream education except in a few specific circumstances. The admissions authority must consider the child’s application under their usual admissions procedures and published criteria. They cannot refuse them on the grounds that they feel unable to cater for their needs – a reason often cited – nor can they refuse any child simply because they do not have an EHCP.

The Equality Act 2010

Schools must not discriminate directly (e.g. not allowing a disabled child on a school trip or not auditioning them for the school play) or indirectly (e.g. applying a behaviour policy in the same way to everyone which leads to a disabled child’s exclusion). Also, schools must not discriminate for a reason arising from a child’s disability – for instance a child (a wheelchair user) being disadvantaged by missing the beginning of every lesson because they are forbidden to move around the school with their peers on health and safety grounds.

Harassment and victimisation

Harassment is also outlawed and is defined as behaviour violating dignity or creating a hostile environment, e.g. a teacher making an example of a child’s handwriting when the child has difficulties with fine motor skills, or a school failing to intervene when a child with learning difficulties is repeatedly bullied by peers. Children or parents who complain about discrimination or harassment must not be victimised, e.g. a parent who has complained that their child is not receiving the support detailed in their EHCP being banned from coming into the school except by appointment. This can cover victimisation by association, e.g. where a child gets into trouble for speaking up for a disabled peer.

Reasonable adjustments

Schools must consider and make reasonable adjustments including providing aids and services to ensure disabled children are not substantially disadvantaged compared with their peers. Examples might be a thick pencil and writing wedge for a child with dyspraxia or an amanuensis for a non-verbal child who uses a letter board, allowing a visually impaired child to sit at the front or organising a small group for social stories including a child with autism spectrum disorder. This duty is anticipatory: adjustments must be considered in advance, so schools should ensure that their policies are disabled friendly whether on marking, trips, bullying, fire safety and so on.

Positive action

Where a group of disabled children are achieving less than their non-disabled peers, a school may make additional provision. So schools could run extra maths classes with a native signer for sign language-using students as they find abstractions difficult, or provide an extra homework club if this is an area in need of attention.

Public Sector Duty

Schools have a general duty to consider all individuals in their day-to-day work – in shaping policy, delivering services and in employment. This equally applies to early years providers, non-maintained special schools, independent specialist providers and others making provision funded from the public purse. Here are examples of how its requirements might be met:

  • Eliminating discrimination, harassment and victimisation – for example, incidents of discrimination and bullying of disabled children could be monitored and measures adopted to reduce these to zero.
  • Removing or minimising disadvantages experienced by disabled children – for example, ensuring all activities are fully accessible to disabled students.
  • Positive action – for example, ensuring that teachers work with SEN and disabled students rather than having them always with teaching assistants.
  • Taking measures to meet the needs of disabled children that are different from the needs of non-disabled children – for example, providing an indoor area at lunchtime for disabled students who find the playground overwhelming.
  • Encouraging disabled children to participate in public life or other activity in which their participation is disproportionately low – for example, ensuring disabled students are represented on the school council by having reserved places or a separate election of disabled students.
  • Fostering good relations, tackling prejudice and promoting understanding – for example, holding assemblies on the history of disabled people; running buddying or circle of friends schemes to bring disabled and non-disabled children together.

Schools must publish information demonstrating compliance with this general duty, containing specific, measurable objectives addressing its core aims: for instance an objective to reduce short-term exclusions of students on school support by changing behaviour policy, or to reduce disablist language in school through training, with monitored progress.

Access Planning Duty

Schools are exempt from the requirement to make physical alterations, but they do have to publish accessibility plans on how they will increase access to the curriculum and physical environment for disabled pupils, and provide information in accessible formats.

These plans must be reviewed every year by the responsible body and revised every three years. There is no date when all schools must be accessible, but new build and refurbishments must comply with Section M of the Building Regulations in this regard. The responsible body must also publish information about arrangements for admission of disabled children, steps taken to prevent disabled children being treated less favourably, facilities provided to assist access, and accessibility plans.

Reasonable adjustments and access arrangements should be part of SEN planning and review. Where school governors publish information about arrangements for disabled children, this should be brought together with the information required under the Children and Families Act 2014.

In practice, all staff should have regular disability equality and inclusion training. Senior management should review all policies, practices and procedures to ensure they are disability-friendly and have taken account of the duty to make reasonable adjustments.

The responsible body should also examine (at least once a term) how they are implementing the Public Sector Duty. All new initiatives should be assessed for equality impact and necessary adjustments made.

Academies have the same duties as all other schools. There is evidence that the proportion of children with SEND in academies has fallen further and faster from 2010 to 2017, but all schools have a duty to adhere to the Equality Act and the SEND Code of Practice and to use their best endeavours to meet pupils’ needs, including SEND. All schools have a duty to admit a child where the school is named in an EHCP and engage with parents on their child’s support and progress.

SEND Tribunals

Parents (and students over 16) have a right to take disagreements to the SEND Tribunal. This can involve schools in expensive legal defence and take up considerable staff time attending tribunal hearings as witnesses and so on. As such, it may be in everyone’s best interests for the school to accept that it did not get everything right, apologise and make the necessary adjustments. Where the school has acted reasonably it may have a defence, but it is better to avoid these situations by having a proactive disability equality and inclusion policy, and demonstrating the progressive removal of barriers.

However, we would hope that it is not just fear of the consequences that motivates schools to take disability equality seriously. Disabled and SEN children are entitled to take their place as equals in mainstream society and not experience segregation and disadvantage right from the start of their lives. And we know from our school visits that inclusive schools create a community in which all students and staff can flourish.

Further guidance


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