House of Commons - Explanatory Note
Special Educational Needs And Disability Bill [Hl] - continued          House of Commons

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Clause 28: Disabled students not to be substantially disadvantaged

108.     This clause will amend the DDA by inserting a new section 28T to place a duty on responsible bodies for further and higher education institutions to take reasonable steps to ensure that disabled students are not placed at a substantial disadvantage, in comparison to students who are not disabled, in their access to education and associated services to students.

109.     The approach mirrors that in section 6 of the DDA, except that the duty under section 6 is owed to particular employees, and therefore involves no element of anticipation. The duty under this new section, in contrast, is owed at large to disabled students, and will therefore require educational institutions to consider the provision which they make for disabled students generally. The duty covers all aspects of a student's life, including academic activities and access to services which are available to him as a student.

Clause 29 and Schedule 5: Further education etc. provided by local education authorities and schools

110.     These provisions will amend the DDA by inserting a new section 28U and a new Schedule 4C, which modify the effect of the rest of the Chapter as it applies, in England and Wales, to higher education secured by LEAs, further education for adults secured by LEAs, further education provided by the governing bodies of maintained schools, the activities of the statutory youth service and, in Scotland, to community education facilities provided by local authorities or voluntary organisations. Because of differences in arrangements, Schedule 5 makes separate provision for England and Wales on the one hand and for Scotland on the other.

111.     The modifications from the formal further and higher education sector reflect the different nature of such education provision. The types of activities covered by this provision tend to be much more informal and are organised in a wide variety of community settings, rather than on an institutional model. The notion of an overall course being a programme of learning rests with the provider of this programme of learning not necessarily the individual. Learners will be covered by the duties whether they participate in a complete programme of learning or just an individual activity on which they would register.

112.     Part 1 of Schedule 4C modifies the rest of the Chapter in relation to England and Wales, so that, where further and higher education secured by LEAs or the governing bodies of schools is concerned, it would be unlawful for them to discriminate against disabled persons enrolled on a course, rather than against disabled students. Similarly, it would be unlawful for them to discriminate in the provision of services provided wholly or mainly for persons enrolled on a course, rather than in the provision of "student services". The activities of the statutory youth service are covered by the duty in modified section 28R(4). Part 2 of Schedule 4C modifies the rest of the Chapter in the same way in relation to those community education facilities in Scotland which are broadly comparable to the services in England and Wales covered by Part 1 of Schedule 4C. Community education in Scotland ranges across youth work, adult education and informal education in a broad sense.

Clause 30 and paragraph 2 of Schedule 3: Rights of Redress

113.     These provisions will amend the DDA by inserting a new section 28V and adding a new Part 4 to Schedule 3. A disabled student who has been discriminated against by an educational institution will have a right to sue that institution through civil proceedings. The alleged discrimination may be by the responsible body of the institution under section 28R of the DDA, or by employees or agents of the responsible body acting in the course of their employment or by the responsible body's authority as defined by sections 57 and 58 of the DDA. These sections of the DDA apply to the duties under Chapter 2 of the new Part 4 of the DDA.

114.     Claims are brought in the same way as claims under Parts 2 and 3 of the DDA, except that there will be no provision to submit a certificate as conclusive evidence that an act was done to safeguard national security. County courts in England and Wales and sheriff courts in Scotland will hear cases brought under this Chapter. Where a disabled person is both a student at an institution and is also employed by that institution they will have rights under the employment provisions (Part 2) of the DDA, which are enforceable through an employment tribunal, as well as rights under this Chapter, enforceable through the courts.

Clause 31 and Schedule 6: Occupation of premises by educational institutions

115.     These provisions will amend the DDA by inserting a new section 28W and adding a new Part 3 to Schedule 4. They set out how further and higher education institutions should comply with the duty to make reasonable adjustments to physical features of premises which place disabled students at a substantial disadvantage where they occupy premises under a lease. These provisions mirror those in sections 16 and 27 of the DDA. Clause 31 should be read with Schedule 6 to the Bill.

116.     The effect is that, where the lease of a property occupied by a further and higher education institution forbids an occupier from making the alterations needed to comply with section 28T or puts conditions on those alterations, the occupier can nonetheless make the alterations required under this Bill, if he has the written consent of the owner/lessor; but he must apply to the landlord in writing if he wants to make the alteration. If the occupier does apply in writing, the landlord cannot refuse consent unreasonably, although he can attach reasonable conditions to the consent.

117.     Regulations will outline what will be regarded as withholding consent and when it is reasonable or unreasonable to do so.

118.     Schedule 6 inserts a provision for circumstances when parties fail to obtain consent and there is a breach of the duty under section 28T. It provides for the owner/lessor to be joined in any action against an educational institution.

Clause 32: Validity and revision of agreements

119.     This clause amends the DDA by inserting a new section 28X, to provide for new section 28P to apply to contracts and agreements with further and higher education providers, so that discriminatory terms are made void. The section will apply with amendments to reflect the fact that the further and higher education duties are enforced through the county or sheriff courts rather than through the SENT and admission and exclusion appeals panels.

Clause 33: Interpretation

120.     This clause defines terms used within Chapter 2 to assist interpretation of that Chapter.

121.     Specifically, section 31A(3) defines the term "student" as meaning a person who is attending, or undertaking a course of study at, an educational institution.

Clause 34: Removal of certain duties of funding bodies

122.     This clause removes from the LSC in England, the CETW in Wales and the Higher Education Funding Councils in England, Scotland and Wales the power to require providers of learning to publish disability statements by imposing a condition of grant. It also removes from LEAs in England the existing statutory duty to publish disability statements. It also removes the power of the LSC to make conditions of grant which impose duties on institutions in relation to the provision that they make for disabled students. This is because these duties will be superseded by the new anti-discrimination duties introduced by this Bill.

Chapter 3 - Miscellaneous

Clauses 35 to 40 and Schedule 7

Clause 35 and Schedule 7: Extension of Role of Disability Rights Commission

123.     This clause will extend the role of the DRC in respect of the provisions of this Bill to the extent provided for in Schedule 7, including, for example, allowing the DRC to: issue non-discrimination notices and make agreements in lieu of enforcement action; apply for an injunction or interdict in respect of persistent discrimination; and, give assistance in relation to proceedings under this Bill, at SENDIST, the county court or the sheriff court. The DRC has similar powers and duties in respect of the provisions of Parts 2 & 3 DDA, conferred by sections 2 to 8 of the DRCA.

Clause 36: Codes of Practice

124.     This clause amends section 53A of the DDA to allow the DRC to prepare Codes of Practice in respect of the new duties in Part 4, apart from those duties imposed by clauses 14 & 15 which place LEAs and schools under a duty to plan. It is intended that there will be two Codes of Practice - one for schools (Chapter 1) and one for higher and further education (Chapter 2), which will be modelled on the DDA Part 3 Code in that they will explain and illustrate how the legislation aims to stop disability discrimination and how service providers can comply with the duties. The DRC already has the power, by virtue of section 9 of the DRCA, to prepare Codes in respect of Parts 2 & 3 DDA.

Clause 37: Conciliation for Disputes under Part 4 of the 1995 Act

125.     This amends the DDA by inserting a new section 31B to extend the DRC's power to make arrangements for the provision of conciliation services. The DRC already has power to make these arrangements in respect of disputes under Part 3 of the DDA. Disputes under Part 2 of the DDA are dealt with by ACAS.

Clause 38: Relationship with other Parts of the 1995 Act

126.     This clause will amend the DDA to establish the relationship of the new Part 4 duties with other sections of the DDA.

127.     Subsections (5) and (6) will remove the exemption of education from Part 3 of the DDA and provide that nothing in Part 3 applies to services that are now covered by Part 4.

Clause 39: Application to the Isles of Scilly

128.     This clause inserts a new section 31C in the DDA. This modifies the application of Part 4 of the DDA (as amended by the Bill) to the Isles of Scilly. Under section 581 of the EA the Isles are treated, for the purposes of that Act, as a separate non-metropolitan council, and the Council of the Isles of Scilly is treated as a County Council. This allows the Council of the Isles of Scilly to be treated as an LEA for the purposes of the EA. An equivalent provision is needed to allow the Council of the Isles of Scilly to be caught by the disability duties imposed on LEAs by the Bill.

Clause 40: Duty of Teacher Training Agency

129.     This clause makes no substantive changes to the law, but re-enacts the duty on the Teacher Training Agency since that duty has no place in the restructured Part 4.


Disability Proposals


130.     The Bill will require schools in England, Wales and Scotland to make reasonable adjustments to ensure disabled children are not placed at a substantial disadvantage. There will be no duty to provide auxiliary aids and services or make adjustments to physical features of schools. We estimate the costs of these duties to be within the range of £1.5m - £3m per year.

131.     The Bill will require LEAs and schools in England and Wales to plan to increase the accessibility of schools to children with disabilities, and to implement their plans. We estimate for LEAs there will be marginal administrative costs (less than £100,000 per year).

132.     In England, the cost of funding LEA projects to make schools more accessible will be supported by the Schools Access Initiative. There will be £50m available for 2001-2002, £70m in 2002-03 and £100m in 2003-04. In Wales, the NAW proposes to take account of the need for disability access projects in its overall capital investment in schools which is expected to rise significantly over the coming decade. Schools' plans will be on a smaller scale, reflecting a school's budget and the fact that the major works will be met by the LEA. We estimate the costs of the physical access planning duty, which will be marginal and largely related to administration, to be in region of £120,000 - £160,000 per year. All of the schools and LEA provisions will come into force in September 2002.


133.     Providers of post-16 education and training in England, Wales and Scotland will be required to make adjustments to arrangements, including physical features, which place disabled students at a substantial disadvantage. Implementation will be staged. We intend to implement the new duties on the post-16 sector in September 2002 in respect of the duties not to treat less favourably and to make reasonable adjustments to non-physical arrangements such as policies, practices and procedures); in September 2003 in respect of auxiliary aids and services other than those that require physical adjustments to buildings; and in September 2005 in respect of physical adjustments to buildings.

134.     Post-16 providers already make resources available to support disabled students with learning. The new duties will increase costs in that they will both increase the likely take up of places by disabled students and may in some circumstances require more support to be provided than is the case at present. In England we intend to make additional money available in the period after the passage of the Bill to pave the way for implementation of the duties by widening access to premises and teaching and learning for disabled people. This will total £172m in financial years 2002-2003 to 2003-2004. Before commencement of the new provisions, providers will be strongly encouraged to make voluntary adjustments to improve physical access. Funding for access projects in England will be made available on a 50% match funded basis in the further education sector.

135.     Expenditure is planned differently in Scotland and Wales and it is not possible to disaggregate the money allocated for disability access from the general capital resources allocated to post-16 education. In Wales, the draft budget includes extra capital provision of some £40m over the 3 year period 2001-2002 to 2003-2004 compared with provision in 2000-2001. This should enable the sectors to improve access for disabled students. In Scotland, for the period 1999-2004, an additional £52m has been identified for capital investment in the Scottish Further Education sector and part of this will be used for disability access. In higher education an extra £4m has been specifically allocated for disability access in the period 2002-03 to 2003-04.

136.     The effect of this additional expenditure on the post-16 sector is to decrease the recurrent costs of implementing the duties as more of the premises are made accessible. However, there will still be additional recurrent expenditure when the new duties are implemented. We estimate that the recurrent costs of implementing the post-16 duties of the Bill in England will be approximately £10m each year.

Rights of redress, advice and conciliation services

137.     The Bill will make redress available for complaints on grounds of disability discrimination. For England and Wales, cases claiming disability discrimination in schools will be heard through a reconstituted SENT. Costs in the first year of operation will be approximately £400,000, rising to £1,250,000 per year as awareness grows. This is based on the assumptions that the costs of dealing with disability appeals will be broadly the same as for SEN appeals and that there will be no major need for new accommodation for the Secretariat. Cases concerning disability discrimination in admission to, and permanent exclusion from, maintained schools and CAs will be heard by admission appeals panels and exclusion appeals panels respectively. In practice we estimate this will lead to a relatively small amount of extra cases going to the appeal panels and costs are expected to be negligible.

138.     The rights of redress for students claiming disability discrimination in post-16 education will be through the county courts in England and Wales. We do not expect there to be many cases taken to the courts as the conciliation service provided by the DRC should help to resolve most cases before they reach that stage and we do not therefore anticipate that there will be more than marginal recurrent costs to the Courts. There could be a small amount of additional costs relating to administration.

139.     In Scotland, the rights of redress for all education will be through the Sheriff Courts. For the same reasons as explained above, we expect costs to be minimal.

140.     The Bill will give the DRC power to make arrangements to establish and operate an advice and conciliation service on disputes arising under the legislation in schools and post-16 education. The costs of setting up and running this advice and conciliation service and preparing codes of practice, together with the demands of additional casework are estimated to be £1m to £1.5m per year.

SEN provisions

141.     Funding has already been allocated to LEAs over the past few years to help prepare for the new duties in the Bill. In England, resources have been provided via the SEN Standards Fund (£6m in 1999-00 and £12m in 2000-01, rising to £18m in 2001-02) to help LEAs set up their parent partnership and conciliation services. An additional £2m will be available in 2001-02 to help LEAs develop and expand these services. In Wales funding has been made available through the NAW's Grants for Education Support and Training (GEST) Programme. The GEST Programme is the equivalent, in Wales, of the Standards Fund in England. Provision for SEN within the Programme was £2.3 million for 2000-2001. The Bill will strengthen the right of children with SEN to be educated in mainstream schools and will require LEAs and schools (except independent schools and special schools) to facilitate inclusion. There is support for inclusion through the Standards Fund (£15m in 2000-01) and the GEST Programme in Wales (£3m in 2000-2001). The other SEN provisions in the Bill are relatively minor changes and will not have significant resource implications. The SEN provisions will come into force in September 2001.


142.     The SEN provisions will have very few manpower implications. The vast majority of LEAs in England and Wales already have parent partnership services in place, some of which also offer dispute resolution services. The disability provisions will have no direct manpower effect on schools, LEAs or post-16 providers of education. The DRC and SENT will require a small number of extra staff to take on the extra responsibilities, possibly no more than 20 for the DRC and 20 for the SENT. The impact on the Courts will be minimal.


143.     A full Regulatory Impact Assessment of the costs and benefits of the Bill is available to the public from the House of Commons and House of Lords libraries. The Bill will have minimal financial impact on the private, voluntary and charitable sectors. We estimate that the disability provisions will cost between £0.66m and £1m per year to independent schools, and non-maintained special schools; between £0.7 and £0.9 per year to voluntary youth service providers; between £0.5m and £0.7m for voluntary providers of education and for private and voluntary providers of early years education between £0.18m - £0.24m. The non recurrent costs to voluntary youth services are estimated as between £5.5m and £8.6m, to voluntary education providers £2.5m and £3.5m and to private and voluntary early years providers £0.33m - £0.53m.


144.     DfEE submitted a memorandum on the powers to make delegated legislation under the Bill to the Delegated Powers and Deregulation Committee of the House of Lords. The Committee reported its view in the 3rd Report (HL Paper 9; Printed 20 December 2000).


145.     The Act will come into force on the date or dates specified by order by the Secretary of State. However, the regulation making powers in the following provisions will come into force when the Bill is passed, so that regulations can be laid before Parliament as soon as possible: clauses 4, 5, 9, 42(2) to (4); and paragraphs 6 to 10, 13(1) to (4) and 14(3) of Schedule 8, and clause 42(1) so far as it relates to those provisions. In addition the National Assembly of Wales, rather than the Secretary of State, has the power to commence by order various specified provisions as respects Wales.


146.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of the Bill in either House of Parliament to make a statement, before Second Reading, about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Secretary of State for Education & Employment made the following statement on 1 March 2001:

    In my view, the provisions of the Special Educational Needs and Disability Bill [H.L.] are compatible with the Convention rights.



ACAS                    Advisory, Conciliation and Arbitration Service - provides a conciliation service in employment tribunal cases under discrimination as well as general employment law.

CA                    City Academy - a type of independent school established under section 482 of the EA as amended by section 130 of the LSA. Intention is that CAs, to replace seriously failing schools, will be established by partnerships involving the Government, and voluntary sector, church and business sponsors.

CCTA                City College for the Technology of the Arts - a type of independent school established under section 482 of the EA with a curricular emphasis on technology in its application to the performing and creative arts.

CETW               National Council for Education and Training for Wales - established under section 30 of the LSA with broadly similar functions to the LSC in England.

CTC                    City Technology College - a type of independent school established under section 482 of the EA with a curricular emphasis on science and technology.

DDA                    Disability Discrimination Act 1995

DDA Part 3 Code          Code of Practice: Rights of Access Goods, Facilities, Services and Premises - gives practical guidance on how to avoid discrimination against disabled people in their access to services or premises.

disabled person          Section 1 of the DDA defines a disabled person as someone who has "a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities". This definition is expanded elsewhere in the DDA and in The Disability Discrimination (Meaning of Disability) Regulations 1996. There is also statutory guidance on the meaning of disability (see paragraph 35 of these notes).

DRC                    Disability Rights Commission - a body established by the DRCA which has similar functions in relation to disability issues as the Commission for Racial Equality and the Equal Opportunities Commission have in relation to race and sex issues respectively. One of the DRC's broad objectives is to work towards the elimination of discrimination against disabled people.

DRCA                    Disability Rights Commission Act 1999

DRTF                    Disability Rights Task Force (described at paragraphs 9 - 12 of these notes)

EA                    Education Act 1996

FEFC                    Further Education Funding Council

FEFCW               Further Education Funding Council for Wales

independent school          A school which falls within the definition contained in section 463 of the EA. In particular, these schools are not maintained by LEAs.

LA                    Local Authority (in terms of the provision of education, the broad equivalent, in Scotland, of the LEA in England and Wales).

LEA                    Local Education Authority - the local government organisation responsible for providing education.

LSA                    Learning and Skills Act 2000

LSC                    Learning and Skills Council for England - a non-departmental public body, established under section 1 of the LSA which is responsible for post-16 learning, other than higher education. It will take over the functions performed by the FEFC and have the general oversight of the provision of adult education, although LEAs will continue to provide adult education under that oversight.

maintained school          A community, voluntary, foundation, community special or foundation special school. These are all schools maintained by an LEA.

maintained nursery school     A nursery school funded by an LEA which is not a special school (See s.22(9) of the SSFA).

NAW                    National Assembly for Wales

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Prepared: 6 March 2001