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

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Clause 28 and Schedule 4: Further education etc. provided by local education authorities and schools

109.     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 4 makes separate provision for England and Wales on the one hand and for Scotland on the other.

110.     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.

111.     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 29 and paragraph 2 of Schedule 2: Rights of Redress

112.     These provisions will amend the DDA by inserting a new section 28V and adding a new Part IV 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 clause 25, 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 II of the new Part IV of the DDA.

113.     Claims are brought in the same way as claims under Parts II and III 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.

Clause 30 and Schedule 5: Occupation of premises by educational institutions

114.     These provisions will amend the DDA by inserting a new section 28W and adding a new Part III 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 a disabled student at a substantial disadvantage where they occupy premises on a lease. These provisions mirror those in sections 16 and 27 of the DDA. Clause 30 should be read with Schedule 5 to the Bill.

115.     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.

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

117.     Schedule 5 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 31: Validity and revision of agreements

118.     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 appeals panels.

Clause 32: Interpretation

119.     This clause defines terms used within Chapter II to assist interpretation of that Chapter.

120.     Specifically, subsection (3) makes clear that a researcher who is not an employee of an educational institution is covered by Part IV duties. Where a researcher is an employee he will be covered by Part II duties.

Clause 33: Removal of certain duties of funding bodies

121.     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 III - Miscellaneous

Clauses 34 to 39 and Schedule 6

Clause 34 and Schedule 6: Extension of Role of Disability Rights Commission

122.     This clause will extend the role of the DRC in respect of the provisions of this Bill to the extent provided for in Schedule 6, 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 II & III DDA, conferred by sections 2 to 8 of the DRCA.

Clause 35: Codes of Practice

123.     Clause 33 amends section 53A of the DDA to allow the DRC to prepare Codes of Practice in respect of the new duties in Part IV, apart from those duties imposed by clauses 13 & 14 which place LEAs and schools under a duty to plan to increase accessibility. It is intended that there will be two Codes of Practice - one for schools (Chapter I) and one for higher and further education (Chapter II), which will be modelled on the DDA Part III 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 II & III DDA.

Clause 36: Conciliation for Disputes under Part IV of the 1995 Act

124.     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 III of the DDA. Disputes under Part II of the DDA are dealt with by ACAS.

Clause 37: Relationship with other Parts of the 1995 Act

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

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

Clause 38: Application to the Isles of Scilly

127.     This clause inserts a new section 31C in the DDA. This modifies the application of Part IV 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 39: Duty of Teacher Training Agency

128.     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 IV.

EFFECTS OF THE BILL ON PUBLIC SECTOR FINANCES

Disability Proposals

Schools

129.     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.

130.     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).

131.     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 this 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 by September 2003.

Post-16

132.     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 by September 2003 (duties not to discriminate and to make reasonable adjustments to non-physical arrangements such as policies, practices and procedures) and by 2005 (to adjust physical features and provide auxiliary aids and services).

133.     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.

134.     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.

135.     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

136.     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.

137.     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.

138.     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.

139.     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

140.     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 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.

EFFECTS OF THE BILL ON PUBLIC SERVICE MANPOWER

141.     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.

SUMMARY OF REGULATORY APPRAISAL

142.     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.

COMMENCEMENT

143.     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, 41(2) to (4) and paragraphs 6 to 12, 15(1) to (4) and 16 of Schedule 7.

EUROPEAN CONVENTION ON HUMAN RIGHTS

144.     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). Baroness Blackstone, the Minister of State for Education and Employment has made the following statement on 4 December 2000:

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

ANNEX 1

GLOSSARY OF TERMS AND ABBREVIATIONS

ACASAdvisory, Conciliation and Arbitration Service - provides a conciliation service in employment tribunal cases under discrimination as well as general employment law.
CACity 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.
CETWNational Council for Education and Training for Wales - established under section 30 of the LSA with broadly similar functions to the LSC in England.
CTCCity Technology College - a type of independent school established under section 482 of the EA with a curricular emphasis on science and technology.
DDADisability Discrimination Act 1995
DDA Part III CodeCode 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 personSection 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).
DRCDisability 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.
DRCADisability Rights Commission Act 1999
DRTFDisability Rights Task Force (described at paragraphs 9 - 12 of these notes)
EAEducation Act 1996
FEFCFurther Education Funding Council
FEFCWFurther Education Funding Council for Wales
independent schoolA school which falls within the definition contained in section 463 of the EA. In particular, these schools are not maintained by LEAs.
LALocal Authority (in terms of the provision of education, the broad equivalent, in Scotland, of the LEA in England and Wales).
LEALocal Education Authority - the local government organisation responsible for providing education.
LSALearning and Skills Act 2000
LSCLearning 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 schoolA community, voluntary, foundation, community special or foundation special school. These are all schools maintained by an LEA.
maintained nursery schoolA nursery school funded by an LEA which is not a special school (See s.22(9) of the SSFA).
NAWNational Assembly for Wales
parentSection 576 of the Education Act 1996 provides that 'a parent' in relation to a child or young person includes somebody who has care of him or, who is not a parent of his, but has parental responsibility for him. Parental responsibility has the same meaning as in the Children Act 1989.
PRUsPupil Referral Units - schools established and maintained by LEAs which are specially organised to provide education for children of compulsory school age who, because of illness, exclusion from school or other reasons, might not otherwise receive suitable education. (see s.19(2) EA).
SENSpecial Educational Needs - a child has special educational needs if he or she has learning difficulties that need special educational help. The legal definition is in s.312 EA.
SEN Code of PracticeCode of Practice on the Identification and Assessment of Special Educational Needs.
SENTSpecial Educational Needs Tribunal - a tribunal established under section 333 EA to consider parents' appeals against decisions of LEAs in England and Wales about assessment and statements of their children's SEN.
SENDISTSpecial Educational Needs and Disability Tribunal - the SENT will, by virtue of this Bill, become the SENDIST and also hear cases of disability discrimination in schools in England and Wales.
Special schoolSchools which are specially organised to make special educational provision for pupils with special educational needs. Special schools are either maintained schools or non-maintained special schools approved under section 342 EA.
SSFASchool Standards and Framework Act 1998.

 
 
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Prepared: 8 December 2000