House of Lords - Explanatory Note
Special Educational Needs And Disability Bill [H.L.] - continued          House of Lords

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Clause 6: Maintenance of statement during appeal

58.     One of the grounds on which parents can appeal to the SENT is where an LEA proposes to cease maintaining a statement of the child's SEN. This clause amends the EA by adding a new sub-paragraph (5) to paragraph 11 of Schedule 27 obliging the LEA to continue to maintain the child's statement until the outcome of this type of appeal is known.

Clause 7: Duty to inform parents where special educational provision made

59.     This clause amends the EA by inserting a new section 317A. This requires governing bodies in respect of community, foundation and voluntary schools, and the LEA (through the head teacher) in respect of Pupil Referral Units (PRUs), to inform parents of children without statements of SEN that special education provision is being made for their child because it is considered that he has SEN.

60.     The clause also amends section 123 of the SSFA so that providers of relevant nursery education are under the same duty. Relevant nursery education is defined in section 123(4) of the SSFA so as to include nursery education provided by the LEA or by any other person who receives financial assistance from an LEA and whose nursery education is taken into account in the LEA's Early Years Development Plan.

61.     Although they are not covered by this clause, the Government intends that CAs will be required under their funding agreements to inform parents when they are making special educational provision for a child.

Clause 8: Review or assessment of special educational needs at request of responsible body

62.     This clause amends the EA by inserting a new section 329A. This gives maintained schools, maintained nursery schools, PRUs, CAs, CTCs and CCTAs the right formally to ask the LEA to carry out a statutory assessment or re-assessment of a registered pupil at the school to determine whether that child needs a statement of SEN, in cases where no such assessment or re-assessment has taken place within the previous six months. At present only parents have that right.

63.     It places a duty on the LEA to decide whether to make an assessment or re- assessment in response to a request from a school and it places a duty on the LEA, before deciding whether to comply with the request, to send a notice to the parent informing them that a request from the school has been made, of the procedure to be followed when making an assessment, the name of an officer at the LEA who can provide further information, and, of their right to make representations and provide written comments within a minimum of 29 days.

64.     Should the LEA decide to assess the child's educational needs, section 329A requires them to notify the child's parent and the school which made the request. If they decide not to make an assessment, they are required to notify the parent and school of that decision, and the reasons for it. They also have to inform the parent of his right to appeal to the SENT, and give him any further information required by regulations (which might include details of the conciliation service available under 332B).

Clause 9: Duty to specify named school

65.     This clause amends the EA by inserting a new section 324(4A) to allow an LEA not to name a particular school in a child's statement of SEN where the child's parents have made suitable arrangements (typically by paying for a place at an independent school). It avoids, in those circumstances, the LEA naming a school in the child's statement and having to keep open a place for him at that school, where they know that the child will not be attending that school, potentially allowing that place to be taken up by another child.

Schedule 7: Minor and consequential amendments

66.     This Schedule makes a number of amendments to the EA which are minor or consequential, arising from this Bill.

67.     Paragraphs 6, 7 and 8 amend sections 325, 328 and 329 respectively to provide for regulations to prescribe what information is to be included by the LEA in notices to parents informing them of their right of appeal against a decision:

  • not to make a statement of SEN for their child (s.325);

  • not to comply with a request from a parent to make an assessment or re-assessment of a child with a statement (s.328); and

  • not to comply with a request from a parent to make an assessment of a child without a statement (s.329).

They also allow regulations to make provisions about time limits for serving notices under sections 325 and 328; time limits in relation to service of notices under section 329 will be dealt with by regulations under paragraph 3 of Schedule 26 to the EA (see paragraph 16 of the Bill).

68.     Paragraphs 9 to 12 amend paragraphs 6, 8, 10 and 11 respectively of Schedule 27 to the EA to provide for regulations to be made prescribing the information to be provided by the LEA in notices to a parent when:

  • informing a parent of his right to appeal when serving a copy of the child's statement (paragraph 6);

  • informing a parent of his right to appeal against the refusal to substitute a school named in a statement (paragraph 8);

  • informing a parent of his right to appeal against an amended statement (paragraph 10); and

  • informing a parent of his right to appeal against a decision to cease to maintain a statement (paragraph 11).

69.     Paragraph 13 amends section 323(1)(a) and paragraph 4(1) of Schedule 26 to the EA to require an LEA to inform parents when it is considering whether to make an assessment. LEAs are currently required to do this when they are proposing to make an assessment. Parents often assume this to mean that the LEA is definitely going ahead with an assessment when this may not be the case. The new wording clarifies the situation.

70.     Paragraph 14 makes a technical change to clarify the law. It makes it clear that under section 347 of the EA an LEA does not have to obtain the Secretary of State's consent to a child being educated in an independent school, if the child's parents are themselves making the arrangements to send their child to that school.

71.     Paragraph 15 makes a number of changes to section 336 of the EA, ensuring that the power to regulate SENDIST procedure for SEN appeals is the same as that in respect of DDA claims. In particular it provides for hearings before the Tribunal to be in private except in prescribed circumstances, and for an SEN appeal to be heard with a DDA claim.

72.     Paragraph 16 replaces paragraphs 3(3) and (4) of Schedule 26 to the EA to provide for regulations to be made prescribing time limits within which an LEA must:

  • inform parents that it is considering whether to make an assessment or re- assessment, whether in response to a request from a parent or school, or otherwise;

  • reach its decision on whether or not to make such an assessment; and

  • carry out an assessment or re-assessment where it has decided to do so.

73.     At present, regulations on time limits only become effective when an LEA has made a decision to make an assessment or re-assessment.

PART II - DISABILITY DISCRIMINATION IN EDUCATION

Chapter I - Schools

Clauses 10 to 24 with Schedule 1 and paragraph 1 of Schedule 2

Clause 10: Discrimination against disabled pupils and prospective pupils

74.     Clause 10 should be read in conjunction with Schedule 1. It amends the DDA by adding a new section 28A prohibiting all schools from discriminating against disabled children in their admissions arrangements, in the education and associated services provided by the school or in relation to exclusions from the school.

75.     The clause also enables the Secretary of State to prescribe in regulations the education and services which should and should not be subject to these duties. It is intended that all teaching during school hours, other teaching, and activities such as after school clubs, school trips, and school orchestras will be covered by the duties. The following are not intended to be covered by these duties: adult education provided by schools (which will be covered by Chapter II of Part IV of the DDA) and services to parents (which is covered by Part III of the DDA).

Clause 11: Meaning of "discrimination"

76.     This clause amends the DDA by inserting a new section 28B defining the meaning of discrimination. It works in the same way as the definition in section 5 of the DDA, except in the respects set out below. An explanation of section 5 of the DDA is set out in paragraph 30 of these Explanatory Notes.

77.     The reasonable adjustments duty under Clause 12 is owed to pupils at large, unlike the duty owed to employees under section 6 of the DDA. For the parents of a pupil to bring proceedings, therefore, it is necessary for them to show not only that the general duty is breached but also that this breach was to the pupil's detriment. Provision is also made for responsible bodies not to be liable where they do not know (or could not reasonably be expected to know) of a pupil's or prospective pupil's disability, both in relation to the less favourable treatment duty and the reasonable adjustment duty. Although the anticipatory nature of the latter duty means that a responsible body would have to consider what reasonable adjustments it might make generally to meet the needs of disabled pupils whether or not it knew of an individual pupil's needs, it may need to know that a particular pupil was disabled, for example, in order to apply a policy to him. In those circumstances, a responsible body would not be liable for failure to take a particular step where it did not know of the disability.

Clause 12: Disabled pupils not to be substantially disadvantaged

78.     This clause amends the DDA by adding a new section 28C placing a duty on schools to take reasonable steps to ensure disabled pupils are not placed at a substantial disadvantage, in comparison to pupils who are not disabled, in relation to education and associated services provided to pupils, and to ensure disabled prospective pupils are not placed at a substantial disadvantage, compared to prospective pupils who are not disabled, in relation to the admission arrangements for the school. This mirrors the general approach in section 6 of the DDA, but this clause is anticipatory and provides exceptions to the duty. Schools will not be required to make physical alterations to premises (including removing a physical feature) or to provide auxiliary aids. The statement of SEN (in Scotland, the Record of Needs) already provides for the identification and provision of educational auxiliary aids and adaptations for pupils in school. This clause also specifies the factors which schools will have to consider in deciding whether it is reasonable to make an adjustment.

Clause 13: Accessibility strategies and plans

79.     This clause amends the DDA by inserting a new section 28D to place a duty on LEAs and schools in England and Wales to plan to increase, over time, the physical accessibility of school premises and the curriculum to disabled pupils and prospective disabled pupils. The LEA's accessibility strategy will set out its plans for increasing the accessibility of the maintained schools in the area. The LEA does not have to produce a self-standing strategy, it can choose the format it feels most appropriate to record its strategy, for example by dovetailing it with another of its plans.

80.     A school's accessibility plan will be on a far smaller scale than that of the LEA. Maintained schools are already under a duty to include certain information about their arrangements and facilities for disabled pupils in their governors' annual report. This clause places an additional duty to include their accessibility plans in that report. The Government intends that CAs will be required, through their funding agreements, to include information on their plans to increase accessibility in their annual report to parents. LEAs and schools will be under a duty to implement their strategies and plans.

81.     Regulations will prescribe the period to be covered by the strategy or the plan. LEAs and schools will have to keep their strategies and plans under review, and revise them if necessary in light of that review.

Clause 14: Accessibility strategies and plans: procedure

82.     This clause amends the DDA by inserting a new section 28E which sets out what LEAs and schools will have to consider when preparing their strategies and plans, and the duties they must comply with once the strategies and plans are in place. LEAs and schools will be required to allocate adequate resources to implement their strategies and plans. LEAs will be under a duty to have regard to guidance issued by the Secretary of State and, for Wales, the NAW, about reviewing and revising their strategies. It is envisaged that the guidance will specify when LEAs should review their strategies.

83.     Independent schools, other than CAs, will be required to make a copy of their plans available for inspection to anyone who asks to see it at a reasonable time. Maintained schools and CAs will not be covered by this duty as they will have to publish their plans in their annual governors' report to parents.

Clause 15: Residual duty of education authorities

84.     This clause amends the DDA by inserting new sections 28F & 28G. This makes it unlawful for an LEA in England and Wales, or an education authority in Scotland, to discriminate against a disabled pupil or prospective pupil in the discharge of its functions under various education Acts. These are intended to cover the general education related functions of authorities that affect pupils or prospective pupils generally. An authority will already be under certain duties in Part IV (where it is the responsible body for a school). When considering which anti-discrimination duties apply to its schools functions, an authority should first look at whether the duties not to discriminate under section 28A apply. If they do not, then the duty under this section - known as the "residual duty" - will apply.

Clause 16: Special Educational Needs and Disability Tribunal

85.     Subsection (1) of this clause will amend the DDA by inserting a new section 28H to change the name of the SENT to the SENDIST and extend the jurisdiction of the SENT to hear cases of disability discrimination in schools. The jurisdiction of the SENDIST will only extend to England and Wales (as does the jurisdiction of the SENT). Rights of redress in Scotland will be through the sheriff court. Cases of disability discrimination under Part III of the DDA are heard through the courts and cases under Chapter II (further and higher education) of the new Part IV will also be heard through the courts.

86.     Subsection (2) provides that there is no requirement to consult disability organisations on appointments to the lay panel. The lay panel is a panel of persons who may serve as the other two members of the Tribunal with the legally qualified chairman (subsection (3)).

Clause 17: Jurisdiction and powers of the Tribunal

87.     This clause will amend the DDA by inserting a new section 28I to set out the circumstances in which a parent can make an appeal to SENDIST and the powers that SENDIST will have if it finds that there has been unlawful discrimination. The alleged discrimination may have been committed by the responsible body of the institution in breach of clause 10, or be treated under section 58 of the DDA as having being done by the responsible body if committed by its employees or agents.

88.     Section 28I(2) will prevent claims of discrimination being made to SENDIST in relation to admissions to, and permanent exclusions from, maintained schools and CAs. Arrangements for these schools will be through admissions appeals panels or exclusions appeals panels and are described under clauses 19 and 20 respectively. SENDIST will hear claims of discrimination in relation to admissions to, and permanent exclusions from, all other schools. SENDIST will hear claims of discrimination in relation to temporary exclusions from all schools because temporary exclusions are not covered in the existing arrangements for exclusion appeals panels.

89.     Sections 28I(3) & (4) will give SENDIST wide powers to order any remedy it thinks appropriate with the exception of financial compensation. Although SENDIST will not be able to award financial compensation it will be able to order schools and LEAs to take compensatory action to take account of past discrimination and shape the future prospects of the disabled child. Examples of the kind of orders that SENDIST might make are:

  • that the LEA or school provide disability awareness training for some or all staff;

  • that the LEA or school prepare guidance on combating disability discrimination for issue to all staff;

  • that an LEA Equal Opportunities Officer arrange and attend, at specified times, meetings between the school and the child's parents to review what reasonable adjustments (short of adjustments to the physical premises or provision of auxiliary aids) might be required;

  • that the school/LEA change policies, for example, those that prevent visually impaired pupils going into the science laboratory, those that prevent disabled pupils going on certain school trips and anti-bullying policies so that they deal with bullying on the grounds of disability;

  • that additional tuition is provided to enable a child to catch up on things he has missed due to discrimination (such as science lessons in the example above);

  • that a library is relocated to the ground floor (short of requiring an adjustment to the physical premises), or if not possible, that the school provides a list of available books and ensure that they are brought down to the child for him to read in a quiet room;

  • that an independent school must admit a disabled pupil (where the school had previously refused) or must admit the pupil on the same terms as pupils who are not disabled (where, for example, the school had offered a place but at an increased fee); or

  • that a maintained school which has temporarily excluded a disabled pupil must provide additional tuition to enable the pupil to catch up on education missed due to discrimination.

90.     SENDIST will be able to set rigorous deadlines when directing action by schools and LEAs. If a responsible body fails to comply within the deadlines, the parent can ask the Secretary of State, or the NAW as appropriate, to make a direction to require compliance.

Clause 18 and paragraph 1 of Schedule 2: Procedure

91.     Subsection (1) amends the DDA by inserting a new section 28J which enables procedural regulations to be made in relation to SENDIST which reflect the powers already in existence in relation to the SENT appeal procedure. The major difference is the new power to make regulations allowing the Tribunal to hear a disability claim with an SEN claim.

92.     Subsection (2) and Schedule 2 insert a new Part III into Schedule 3 of the DDA. This sets out further procedural provisions, similar to those for claims under Parts II and III of the DDA, the major difference being that there is no provision to submit a certificate as conclusive evidence that an act was done to safeguard national security.

Clause 19: Admissions

93.     This clause amends the DDA by inserting a new section 28K providing for rights of redress for claims of disability discrimination in admission decisions, against a maintained school or CA, to be made through admission appeals panels - the arrangements set up to consider admission appeals.

Clause 20: Exclusions

94.     This clause amends the DDA by inserting a new section 28L providing for rights of redress for claims of disability discrimination in permanent exclusion decisions, against a maintained school or CA, to be made through exclusion appeals panels - the arrangements set up to consider appeals against permanent exclusions.

Clause 21: Roles of the Secretary of State and the National Assembly

95.     This clause amends the DDA by inserting a new section 28M, and gives the Secretary of State or, as appropriate, the NAW the power to direct an LEA or a school if satisfied that they have not complied with, or have acted unreasonably in carrying out, their duties to plan to increase accessibility or in relation to an order made by SENDIST. These are similar powers to those in sections 496 and 497 of the EA.

Clause 22: Enforcement Procedure: Scotland

96.     This clause amends the DDA by inserting a new section 28N providing that all claims of disability discrimination under this chapter will, in Scotland, be heard in the sheriff court. The remedies available will not include financial compensation.

Clause 23: Validity and revision of agreements of responsible bodies

97.     This clause amends the DDA by inserting a new section 28P, to apply to contracts and agreements with schools, so that discriminatory terms are made void. This works similarly to section 26 of the DDA.

Chapter II - Further and Higher Education Institutions

Clauses 25 to 33 with paragraph 2 of Schedule 2, Schedule 3, Schedule 4 and Schedule 5

Clause 25 and Schedule 3: Discrimination against disabled students and prospective students

98.     This clause amends the DDA by adding a new section 28R making it unlawful for institutions to discriminate against disabled students in their admission, exclusion or suspension arrangements and in the services they provide to students. This clause should be read in conjunction with Schedule 3 which sets out the responsible bodies for the institutions covered by these duties.

99.     Only services provided wholly or mainly for students (described as "student services" in this Bill) are covered by these duties. These include the provision of education and services related to teaching and learning and also the wider services, such as accommodation and leisure facilities that institutions offer mainly to students. In order to provide clarity about which services are covered by these duties, the Secretary of State has the power to make regulations to set out whether particular services are covered.

100.     Institutions within the further education sector (i.e. those conducted by further education corporations and those designated for the purposes of Part I of the Further and Higher Education Act 1992) and institutions within the higher education sector (i.e. publicly-funded universities, institutions conducted by higher education corporations and those designated for the purposes of Part II of the Further and Higher Education Act 1992) will be covered by the new duties. In Scotland, the relevant institutions are colleges of further education having a board of management within the meaning of section 36 of the Further and Higher Education (Scotland) Act 1992, institutions within the higher education sector within the meaning of section 56(2) of the Further and Higher Education (Scotland) Act 1992, any central institution within the meaning of section 135(1) of the Education (Scotland) Act 1980 colleges of further education maintained by an education authority in the exercise of their further education functions within the meaning of section 1(5)(b)(ii) of that Act.

101.     Private institutions will generally be covered by Part III of the DDA. However, the Secretary of State will have a power to designate by order institutions in Great Britain that receive some public funds. These will be covered by the duties in Part IV of this Bill.

Clause 26: Meaning of "discrimination"

102.     This clause amends the DDA by adding a new section 28S defining the meaning of discrimination. It works in the same way as the definition in section 5 of the DDA, except in the respects set out below. An explanation of section 5 of the DDA is set out in paragraph 30 of these Explanatory Notes.

103.     As well as the general justification there are two specific justifications relating to the less favourable treatment duty. Less favourable treatment will be justified if it is necessary to maintain academic standards or other standards such as dramatic or artistic standards. It will also be justified in certain cases which will be set out in regulations, for example, where a student is refused entry to a vocational training course where the job for which it qualifies him would require him to pass a medical test which is itself justified under Part II of the DDA and which he cannot pass.

104.     Provision is also made for responsible bodies not to be liable where they do not know (or could not reasonably be expected to know) of a person's disability (subsection (3)), both in relation to the less favourable treatment duty and the reasonable adjustment duty. Although the anticipatory nature of the latter duty means that an institution would have to consider what reasonable adjustments it might make generally to e.g. meet the needs of dyslexic students so that knowledge would not be relevant, it may need to know that a particular student was dyslexic in order to apply the policy to him. For example, if the policy was that dyslexic students would have extra time to finish their exams, the institution would need to know which students should benefit from that extra time. In those circumstances, an institution would not be liable for failure to provide the extra time where it did not know of the disability.

105.     The reasonable adjustment duty under Clause 27 below is owed to students at large, unlike the duty owed to employees under section 6 of the DDA. For any particular student to bring an action, therefore, it is necessary for them to show not only that the general duty is breached but also that this breach was to their detriment.

Clause 27: Disabled students not to be substantially disadvantaged

106.     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.

107.     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.

108.     Section 28T(2) gives examples of the factors which an institution may take into account in considering what are reasonable steps for it to take. Regulations will set out what kind of standards (other than academic standards) a responsible body may take into account in considering what reasonable steps it will take.

 
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Prepared: 8 December 2000