ISC/SEN Legal Update 2012 David Wolfe

ISC/SEN Legal Update 2012 David Wolfe

Topics • Draft SEN Bill • Equality Act 2010 changes • SEN vs disability vs “access arrangements” (etc)

Draft SEN Bill

Draft SEN Bill • September 2012 – draft bill • Autumn 2012 – Education Select Committee • January 2013 – bill to parliament • 2014 – act of parliament • ‘Autumn 2014’ implementation

Draft SEN Bill • Replaces Education Act 1996 Part 4 • “Statements of SEN” become “Education and Health Care Plans” • Compulsory mediation pre SENDIST • Children to be able to appeal to SENDIST • ‘Personal budgets’ • Academy schools to be like maintained schools • Learning Disability Assessments to disappear with 16-25 year olds now having EHC Plans

EHC Plans “a plan setting out: (a) the child’s or young person’s special educational needs;(b) the outcomes sought for him or her;(c) the special educational provision required by him or her;(d) any health and social care provision of a prescribed descriptionrequired by him or her.”

Equality Act 2010 The ‘Reasonable Steps’ obligation You are required to take reasonable steps to avoid substantial disadvantage where a provision, criterion or practice puts disabled pupils at a substantial disadvantage.

Equality Act 2010 You owe this duty to existing pupils, applicants and, in limited circumstances, to disabled former pupils in relation to the following areas: • deciding who is offered admission as a pupil • the provision of education • access to any benefit, service or facility.

What’s covered All areas of school life • Admissions • Exclusions • Exams • Trips • Classrooms • Homework • Plays • etc

Factors in what is reasonable • The extent to which support will be provided to the disabled pupil under Part 4 of the Education Act 1996 (the SEN framework) • The resources of the school and the availability of financial or other assistance • The financial and other costs of making the adjustment • The extent to which taking any particular step would be effective in overcoming the substantial disadvantage suffered by a disabled pupil • The practicability of the adjustment • The effect of the disability on the individual • Health and safety requirements • The need to maintain academic, musical, sporting and other standards • The interests of other pupils and prospective pupils.

Change! What has changed since last term? Schools and local authorities now have additional obligations towards disabled pupils to provide what are called ‘auxiliary aids and services’ to overcome disadvantage that these pupils experience in schools.

What sorts of things? Provide a disabled pupil with: • a piece of equipment • assistance from a sign language interpreter, lip-speaker or deaf–blind communicator • extra staff assistance • an electronic or manual note-taking service • induction loop or infrared broadcast system • videophones • audio–visual fire alarms • readers for people with visual impairments

AAS vs SEN Many disabled children will have statements of SEN, and auxiliary aids which are necessary as part of their SEN provision will be provided through the statement. In these cases the schools will be under no obligation to duplicate that support. The great majority of children with SEN do not have statements and that will include disabled children who require auxiliary aids or services to prevent them being at a substantial disadvantage.

Resources The Act only obliges schools to make ‘reasonable’ adjustments. Cost and resources are factors that are taken into account in determining what is ’reasonable’. It is important to document carefully any decisions taken on reasonable adjustments so that they can be justified to parents and/or a tribunal.

Can we charge? Can a school charge disabled pupils or their parents for the additional cost of providing auxiliary aids? No.

Us too? Does the duty apply to independent schools? The duty applies to all schools in England and Wales irrespective of how they are funded or managed.

What’s it all about? school exams

Close attention disability SEN JCQ eligible

Disability A person has a disability if— (a) they have a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

SEN (1) A child has “special educational needs” for the purposes of this Act if he has a learning difficulty which calls for special educational provision to be made for him.

SEN (2) A child has a “learning difficulty” if— (a) he has a significantly greater difficulty in learning than the majority of children of his age, (b) he has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area of the local authority.

SEN(3) “special educational provision” means— ... educational provision which is additional to, or otherwise different from, the educational provision made generally for children of his age in schools maintained by the local authority (other than special schools)

So what? • Not all children with SEN are disabled • Short term conditions • Not all children with a disability have SEN • Not all disabilities amount to a ‘learning difficulty’ or call for SEP • Diabetes, HIV, cancer, etc

JCQ criteria The JCQ criteria include things arising from disability, but go well beyond eg: • Students whose first language is not English, Irish or Welsh who have lived in the UK for less than 2 years • Children subject to bereavement or domestic crisis • Children participating in international sporting events

JCQ criteria Even when dealing with things arising from disability JCQ use crude proxy tests (eg speed of processing standard score of 84 or less)

So what? JCQ eligibility ≠ disability

So what? disability SEN JCQ eligible

So what? exams ≠ school

So what? school exams

So what? Reasonable adjustments to remove substantial disadvantagefaced bydisabled pupils school exams Access arrangements arising from JCQ criteria

JCQ says: “Access arrangements are agreed before an assessment. They allow candidates/learners with special educational needs, disabilities or temporary injuries to access the assessment. Access arrangements allow candidates/learners to show what they know and can do without changing the demands of the assessment: for example, a reader, a scribe and a word processor. The intention behind many access arrangements is to meet the particular needs of an individual disabled candidate without affecting the integrity of the assessment. In this way awarding bodies will comply with the duty under the Equality Act 2010* to make ‘reasonable adjustments’.”

So what? • If on JCQ criteria someone is eligible for exam arrangements, then you should make those changes. • But you might need to make different or additional exam changes for someone who is disabled (as a ‘reasonable adjustment’) – discuss with exam board

So what? Just because a pupil might be eligible (per JCQ) for exam adjustments does not mean they are necessarily disabled, much less that reasonable adjustments are required (or conversely not required) in exams or any where else.

So what? • You may need to make reasonable adjustments for a disabled pupil across all or any areas of school life • That might, but need not, include exam arrangements

So what? • Just because someone is JCQ eligible that does not mean they need reasonable adjustments outside exams • Conversely, just because someone is not JCQ eligible it does not mean that they might not be disabled and need reasonable adjustments in other aspects of school life

Think • Disability – all of school life • JCQ criteria – exams only Think about the individual pupil and their particular needs.

ISC/SEN Legal Update 2012 David Wolfe