Organisation and Policy: Influencing Public Policy |
A NIACE Response
First published: 30 March 2000
Revised: 20 April 2000
The NIACE Response to the DfEE consultation document SEN and Disability Rights in Education Bill, published on 17 March 2000, can be found below. The consultation document sets out how the Government intends to respond to the education recommendations of the Disability Rights Task Force report From Exclusion to Inclusion published on 13 December 1999 and the legislative proposals in Meeting Special Educational Needs: A Programme of Action (November 1998).
The consultation document can be found on the DfEE web site at www.dfee.gov.uk/sen and on the disability web site at www.disability.gov.uk. Responses were required by 28 April 2000.
We are grateful for the LGA for advice drawn on in this response.
It is helpful to read our response to the consultation document with:
| The Consultation Document |
| The Disability Task Force Report (DRTF) From Exclusion to Inclusion (December 1999) |
| The Disability Discrimination Act (DDA) 1995 |
| NIACE’s response to the Learning and Skills Bill |
These documents are available on the web sites mentioned above.
The consultation document is the direct result of the DRTF report From Exclusion to Inclusion and is in two sections:
| Annex A: Rights for Disabled People in Education. |
| Annex A1: proposals from the DRTF on schools in England and Wales. |
| Annex A2: proposals from the DRTF on disability rights legislation for adults and young people over 16 in England, Wales and Scotland. |
| Annex B: Special Educational Needs (SEN). |
The NIACE response refers to the section relating to adults.
Many education services were exempted from Part III of the DDA which was about access to goods, facilities, services and premises. There are new duties suggested for schools, colleges, higher education, adult education and youth services, designed to give people in education protection from unfair discrimination. The Government sets out its commitment to "comprehensive, enforceable civil rights for disabled people". The Disability Rights Commission (DRC) is operational from April 2000. The Government intends to implement all of Part III of the DDA, by 2004. In From Exclusion to Inclusion the DRTF’s final report was published in December 1999 with 150 recommendations. The DfEE consultation document uses the DDA definition of disability and states that
| codes of practice will be prepared by the DRC. |
| the DRC’s powers will be extended. |
| there will be practical advice about how education providers can meet their new duties. |
| a requirement on education providers to plan ahead will be central. |
| a key consideration is about disclosure of disability by the student. |
| education providers will be considered to know of a student’s disability when a member of staff is told or where the provider would reasonably be expected to know that the student is disabled. |
| implementation will be as soon as possible. |
| meetings will be held by DfEE to consult. |
The discussion document asks a set of questions. Our response to these is below.
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| Proposal/Consultation Question | NIACE Comment |
| Part III of the Disability Discrimination Act 1995 (access to goods, facilities, services and premises) will not be extended to cover school education services – but see Annex A2 below. New duties will be placed on schools, further education, higher education, adult education, youth services provision to provide services to disabled people by amending existing education law. | |
| Definition of disability from DDA: ‘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’. There will be Codes of Practice for Schools and
post-16 education drawn up by the Disability Rights Commission and laid before Parliament.
There will be new duties for institutions to think about the needs of disabled students in
advance. The powers of the DRC will be extended. The new duties will be implemented as soon as possible although some staging of these may be necessary. |
NIACE welcomes a new code of practice for post-16 education
but recognises the difficulty in defining disability in educational terms. NIACE welcomes this approach as being in keeping with the concept of ‘inclusive learning’ recommended in the Tomlinson Report, where the concept is about improving opportunities for people with disabilities by getting the learning environment right for all students.
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Do you agree that it is necessary, where it is not obvious that a student is disabled, for a student to disclose his/her disability to the institution in order to benefit from the new duties (paragraph 10)?
Yes, but with some serious reservations about the process of disclosure. Institutions cannot plan for appropriate support unless they know of people’s particular needs. However, issues such as confidentiality, human rights, respect and dignity are central. Some people may be reluctant to disclose conditions such as dyslexia or mental health difficulties. The fact that these types of learning difficulty or disability are seemingly "invisible" compounds the issues. It takes time for people to feel confident enough to say that they have certain difficulties or disabilities, especially if they have had negative experiences in the past. A positive and supportive approach to disclosure is essential. Late disclosure should not be a bar to protection under the new rights. Language is also a potential barrier in relation to this question, as adults with learning difficulties often perceive "disability" to signify people who use wheelchairs, rather then themselves.
There are four key issues as some people with learning difficulties, mental health difficulties, dyslexia or other disabilities:
| may not identify themselves as having a disability. |
| may perceive disclosure of a disability or learning difficulty as being counter-productive (e.g. if they have past negative experiences). |
| may not have the comprehension or verbal communication skills to disclose a disability or learning difficulty. |
| in some circumstances may be presumed to have a disability, e.g. if referred from a Social Services day centre for a particular client group. |
NIACE considers that it is essential that a positive and pro-active approach should be taken, by asking people what learning support they might need. An effective assessment and evaluation system combined with tutorial support should also pick up any difficulties people may be having. The most vulnerable students (such as those with autism) may be the least able to articulate their needs, but they should still be entitled to protection under the new legislation. We should expect tutors to realise that there is a difficulty rather than waiting to be told. NIACE considers that an alternative to disclosing a disability could legitimately be based on tutor observation. Tutors picking up on difficulties could be interpreted as an indirect form of disclosure based on observation.
For people with disabilities such as profound and multiple learning difficulties, there may be a role for advocates to be involved.
The critical factor is not the disability, but the impact which the disability has on learning.
This question was very hard to answer, although we have tried to do it justice. In a sense, it was the wrong question to pose, in terms of the emphasis on disclosure. For us at NIACE, a better question would have centred on how you can make the learning environment sympathetic to the needs of people who have disabilities which are not obvious, in order to pick up on any requirements.
What do consultees consider would be a reasonable and realistic timetable for introducing the new duties which are set out in annexes A1 and A2 (paragraph 12)?
As soon as possible. A programme of staff development can take place with immediate effect. NIACE suggests that the principles of the new legislation will need to dovetail closely with the development of the Learning and Skills Councils (due to be operational in 2001) so that disability rights is fully embedded in the new post 16 sector. Action plans should be developed, possibly by placing a duty on the LSCs.
Physical alterations to buildings will take longer. Full implementation for physical access should take place by 2004.
| Proposal/Consultation Question | NIACE Comment | ||||||||
| There will be a duty on LEAs to plan for increasing systematically over time the accessibility of all maintained schools. | This will benefit broader groups of people in the community:
Considerable additional capital resources may be required in the long-term to ensure all schools can meet the new duties. |
Do consultees see any difficulties in implementing the new duties on education providers in the schools sector?
Do consultees agree that the new rights of redress for pupils should mirror the proceedings of the existing SEN Tribunal with its emphasis on remedy through educational means (paragraphs 17-22)?
NIACE does not feel able to comment further on the schools issues covered in questions 3 and 4: please see our accompanying letter.
Should the new duties apply to publicly funded higher and further educational institutions and Part III to the private and voluntary sectors (paragraphs 8-9)?
No. The new legislation should cover all learners with disabilities, regardless of where they are learning. The rights and entitlements should apply across the different sectors.
Do you agree that LEA-secured adult education and, in Scotland, local authority community education services should be treated together with further and higher education sector institutions and covered by the new duties (paragraphs 10-11)?
Yes. It will be essential to have consistency across adult, further and higher education. We would hope that additional support funding would be available for LEAS.
The Government needs to make the case why local authority youth services should not also be covered by the new legislation, rather than being covered by Part 3 of the DDA.
Should education providers be covered by the new duties in relation to only their own provision? Or should this be extended to any provision on their behalf (paragraph 12)?
Education providers should be covered both for their own provision and for organisations which they contract with.
Where education provision is taking place on behalf of an organisation, the onus for quality and staff training is with the initiating agency. Complying with disability rights legislation should also be the responsibility of that agency. Attention to the new requirements can also be built into contracts.
Should education and services provided by an institution primarily for students fall within the new duties and other services remain in Part III? Is such a division workable (paragraphs 13-16)?
NIACE supports in principle the proposal of transferring services offered primarily to students (such as careers and leisure services) from part 3 of the DDA to the new legislation. NIACE hopes that the division would be workable, although in some cases what classifies as for the public and what classifies as for students may blur at the edges.
Other learning related services which could usefully be added to the list of examples are:
| Work experience. |
| Library. |
| Computing facilities. |
| Transport between sites. |
Are there other types of reasonable adjustments that providers should have to consider (paragraphs 19-20)?
NIACE suggests the following additions:
| Support for admissions procedures as some students may not be able to read the admissions forms. |
| Adapting assessment and evaluations procedures to be fully accessible for students with a range of disabilities. (For example, a blind student could do an audio-taped piece of work). |
| Making residential study trips accessible. |
| Guidance services. |
| Awarding bodies and examinations should have accessible procedures: for example a student does not have to be literate to prove vocational competence. |
Although the list at paragraph 21 (‘assessing what is a reasonable adjustment’) is not complete, are there other factors that should be taken into consideration?
Institutions will need support and advice in interpreting "reasonable adjustments."
Item (g) in the list seems to imply that accredited courses are more important, which is of concern to NIACE, as non-accredited and non-vocational courses are also of great value and importance to learners, whether disabled or not.
Are there any other factors that should be considered in justifying less favourable treatment (paragraphs 22-25)?
Institutions will need support and advice in interpreting "less favourable treatment."
NIACE believes that staff attitudes will be an important factor in relation to examples of less favourable treatment. Much discrimination is based on prejudice. The need for disability equality training for staff at all levels should be reflected in the guidance notes and/or code of practice. In NIACE’s experience, disability equality training is best delivered by disabled trainers.
Should the remedies and court used for these discrimination cases be the same as for Part III and other discrimination cases in education (paragraph 26)?
Institutions need to have effective and accessible complaints procedures as the first stage of the process.
Court should be available as an option and a final resort, but local problem solving and conciliation services are needed to address difficulties as a first step.
One suggestion at the NIACE consultative meeting was to have a telephone helpline to give independent advice on the new legislation and its requirements. This could include advice on dealing with difficulties.
What conciliation arrangements would be appropriate (paragraph 27)?
NIACE considers that it would be helpful for the Disability Rights Commission (DRC) to take the lead on setting up conciliation services nationally. NIACE notes that the DRC has recently tendered for conciliation services in relation to the DDA. A parallel service in relation to Disability Rights in Education would be logical.
NIACE does not feel able to comment on the schools issues covered in questions 14 to 20: please see our accompanying letter.
