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Inclusion Now Articles Issue 42

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Editorial

Statement from the new leader of the Labour Party

Address to UN CRPD Committee in Geneva, 15th April 2015

St. Marys School, New Delhi, India

Equality Act Review

Book review: Radical Inclusive Education - Disability, teaching and struggles for liberation

Disabled Students Allowance update

New Law - another attack on inclusion

Poem: Box

What are the benefits to Inclusive Education of Recent SEND Reforms?

The Work of Communities Empowerment Network

Legal Question


Editorial

Those of us who believe in inclusive education are in for a bumpy ride over the next four and a half years. This follows five years of a Coalition Government committed to challenging the non-existent 'bias to inclusive education', with a policy of forcing schools to become academies. The Tory Government are intensifying their cuts to public expenditure, with a likely reduction of 12% in school budgets in real terms, further reductions in Local Authority budgets, new harmful legislation (see Tara Flood's article) and increasing pressure for exclusions (See CEN article). This at the very time when they have given local authorities more responsibility for ensuring all disabled children and young people have an education that achieves the best educational outcomes. The election of Jeremy Corbyn as leader of the Labour Party has shown that another type of politics is possible, a politics of collaboration to achieve justice and equality for the many. Corbyn's unlikely success was prompted by thousands of people wanting a change and wanting to be involved. Jeremy has told us he is committed to full inclusive education, the struggle for which will require supporting all those who want inclusion. We have to create a current on the ground involving more and more teachers, parents and young people as part of building this new politics which can lead to the election of a progressive Government in 2020, committed to full inclusion. The article on St Mary's School Delhi and the speech of 17 year old Rabjyot to the UN CRPD Committee in Geneva examining implementation of global inclusion should give us inspiration, as should the determination of disabled students fighting the destruction of the Disabled Students Allowance.

Richard Rieser

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Statement from the new leader of the Labour Party

In the run-up to the Labour leadership election, ALLFIE wrote to each of the four candidates asking them for their thoughts on inclusive education and how they would meet the UK's UNCRPD commitment to implementing a fully inclusive education system for all disabled learners across the whole of the education system. We specifically asked each of them to address ALLFIE's six manifesto demands: http://www.allfie.org.uk/pages/work/manifesto.html
Below is the statement we received in response from the successful candidate and now Leader of the Labour Party, Jeremy Corbyn. The statements from the other candidates can be read in ALLFIE's briefing no 47.

Jeremy Corbyn's statement

I am proposing a National Education Service for skills and learning throughout our lives - it should be universal in coverage. Free access to education for all at every level should be a human right regardless of age, ethnicity, income, disability or special educational learning need. Adequately funded and resourced access to education at every level with no age restrictions, and with a fully funded grant and additional support for those with additional needs.

I want to see a stronger role for Local Education Authorities in co-ordinating provision in their areas, which means bringing all schools into their orbit.

Many of the adaptations for disabled learners and for those with special educational needs benefit able bodied and neurotypical learners too, and need to be seen as standard rather than as an 'add-on'.

Where some learners' educational needs show a need for a more specialised setting - perhaps for some people with such heightened anxiety, sensory processing or complex needs, who couldn't initially cope within the wider mainstream setting, we need specialised bases to act as stepping stones to support transition towards full inclusivity.

Learners need access to a range of courses based on their strengths including better development of vocational courses to skill-up students who are more suited to that style of learning. Our examination system needs flexibility to take into account different learning styles and abilities. One size does not fit all - our examination system needs to be diversified, rather than expect everyone to fit into the same narrow testing strategy.

When teachers are given some freedom and the resources to deliver the curriculum, then there is more space to think creatively about how that curriculum is delivered in a way that promotes inclusivity, celebrates difference and the positive role models and achievements people with special needs and disabilities bring to our communities.

I believe teachers and staff fulfilling supporting roles need compulsory repeated and balanced high quality training in this area: not just within teacher training settings but in early years settings, schools, colleges, universities and workplaces. Many of the inclusivity strategies for teaching disabled and SEN students would benefit all students and teachers.

An understanding of behaviour, paired with adequate resourcing, smaller class sizes and training is good for teachers and good for all learners and makes for less disrupted classrooms.

Inclusion and early intervention always has better outcomes for future life chances and mental wellbeing, but it makes economic sense too to properly equip all members of our society with an education that provides them with the tools to contribute to society and enrich lives.

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Address to UN CRPD Committee in Geneva, 15th April 2015

Rabjyot Singh Kohli

I am Rabjyot Singh Kohli and the name of my disability is 'Arthrogryposis Multiplex Congenita with Deformities Both Upper and Both Lower Limbs'. I am 17 years old and currently doing my 12th standard in 'Commerce with Maths' from St. Marys School, New Delhi, India.

I want to share with you all that my school is celebrating its golden jubilee this year. It gives me great pride to say that St. Mary's has been practising inclusion for the last 50 years. I have spent some time in thinking what is it that makes a school pick up inclusion? Why is it that my school was practicing inclusion much before the CRPD came into place and continues to do so, whereas, there are so many other schools that put up so much of resistance to the idea. I realized that the key factors are: firstly, a rights and not a charity based approach to education and secondly, the great commitment with which the school works with teachers, parents and community to ensure that parents particularly understand the importance of their role in the development of the child.

I believe that inclusive education is the right approach to make children with disabilities more able to find employment and be independent. But I cannot emphasise enough the need to change attitudes and understanding in society and among educators about children who have different needs but the same rights. In addition to studying I have made so many good friends in school… and it is so important to me and to all other children who are in school. Because I learn and play together with my friends… many of those who do not have any disability… helps us to understand each other better. Children with disabilities whose learning styles are different from the typical children also need to be assessed in a manner different from the timed, written examination that is so popular in schools. It is our right to be taught and assessed in a manner that we best respond to.

To conclude let me say that it is with much sadness that I realize that little has been done for children with disabilities at least in Delhi, in India since I came to speak at the UNCRPD convention in New York in 2012. The CRPD is a wonderful document. This august group needs to think, what is the use of a document if there is no implementation. If there is no change on the ground. I don't want that, in the future, children born with disabilities should have to face the same discrimination and difficulties that I faced when I was looking for admission to first standard.

Millions of children like me want and should have the opportunity to go to an inclusive school and study and play alongside all other children. That is how we will not only learn better but also make our society more inclusive. So my call to you is that let us all focus on how we make inclusive education a reality around the world.

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St. Marys School, New Delhi, India

Richard Rieser

St Mary's in the Safdarjung Enclave, Delhi was started in 1966, as a co-educational school, from 3 to 18 years. It is an un-aided Christian school. It has around 1500 pupils with 140 places a year. It is recognized by the Delhi Administration and is affiliated to the Central Board of Secondary Education.

It is fee paying and to gain entry to the secondary department candidates need six years primary education successfully completed. There are 120 children with disabilities at the school covering a wide range of impairments including visual impairment, hearing impairment, Down's syndrome, cerebral palsy, intellectual impairment, children on the autistic spectrum, children with a variety of learning disabilities and those with attention deficit and hyperactive disorder (ADHD).

They are all an integral part of the school. At least 120 children are from a lower socio-economic background. Different entry criteria apply to these groups. The school expects and celebrates difference among its students. The school has worked hard over the years to develop a pedagogy and assessment policy that seeks to cover every aspect of a child's growth, while recognizing that parameters will be different for every individual.

The right attitude or mindset, as well as a can-do policy are important. Attitudes are developed within context and that is the basis of understanding. The school's focus is to take children from the comfort zone into a zone of discomfort, which may be disability or poverty, so that it raises understanding and positive attitudes. The school has developed a programme for bringing about attitudinal difference among the staff and students, thus developing the ambience so necessary to inclusive education.

The focus for all children is not only academia or sitting in a class with a group of children, it's much more – they are all part of extra-curricular activities – games, music, dance, picnics and outstation trips. In an all India survey conducted by the Ministry of HRD in the year 2004, the school was found to be 'The No. 1 School with a Heart'.

To enhance teachers' professional development, workshops are organised to develop their teaching skills, to make them fully aware, sensitive towards their attitude and provide methodologies/strategies to enhance the skills/abilities of every child, taking account of their impairment specific needs, as every child in the class is unique. The teacher is encouraged and trained to use peer and group work. Teachers are encouraged to make use of resources, such as parents and friends wherever necessary as well as to use the help of senior students. To give maximum access to education, classes include 35-40 pupils and the school has developed large class strategies such as group and peer work, rather than cater to a small class size. Each class is balanced to have a range of children from poor socio-economic backgrounds, children with disabilities and fee paying children.

The school has come a long way since the first parent of a child with disabilities asked for their admission. They have not only made the necessary adjustments to buildings, curriculum and teaching and learning, but also engendered positive attitudes to difference amongst a predominantly privileged school population. Strong leadership from the principal and her team have helped develop this successful narrative and it illustrates how changing minds and understandings are crucial as a first step to inclusion.

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Equality Act Review

Over the last couple of years, ALLFIE has noticed a rise in discrimination cases being brought by disabled students in higher education. It has been timely then that the House of Lords have set up a Select Committee "to consider and report on the impact on people with disabilities of the Equality Act 2010". The deadline for submissions of evidence was September 2015 and we have seized the chance to highlight some of the weaknesses in the Act in terms of access to higher education – primarily that the Act misses the opportunity to ensure that disabled students have an absolute right to access mainstream education and that the support required to participate in learning is guaranteed as part of the education provider's 'reasonable adjustments' duty. Andrew's story highlights the real barriers that disabled students can face when accessing higher education.

"Three years ago I started as an undergraduate at the University of Wales Trinity Saint David as a photojournalism student. I expected to face challenges but maybe naively I was not expecting to find disability discrimination the biggest challenge of all.

"At 52 years old I have complex sensory, mobility and neurodiversity impairments and went through the Disabled Students Allowance (DSA) assessment process which detailed the reasonable adjustments I required. The process was straightforward, there was no problem with getting the funding and I was assured the university had a student service team to make sure I'd be supported appropriately. Yet last month just weeks after completing my degree with first class honours I got £20,000 after taking the university to court for disability discrimination.

"If I listed all the incidents of discrimination I experienced during my time at the university it would take a long time and get very boring very fast. I tended to ignore most incidents as do many disabled people. To start with I had very little awareness of my rights and saw a certain level of discrimination as something I just had to put up with. Things like not having a note taker turn up when I needed and loop systems not working.

"The first incident I bothered to do anything about and which didn't make it into the court case was when a lecturer refused to provide me with lecture notes which prevented me from being able to put a marked coursework in on time. That was when I struggled to find the official complaints procedures and discovered how long it took to get through them. Eventually the situation was sorted out and I handed my coursework in late without penalty.

"Then came the main incident that formed my court case: I and other disabled students were denied access to the basement floor of the Dynevor campus library for more than four months. Documents released by the university during my Data Subject Access Request revealed a statement in an internal email that this problem was caused by the building having been constructed with disregard to the DDA in order to save money.

"Sadly the court process did not seem to change the attitude of the university authorities, their response was to place it in the hands of highly expensive lawyers and barristers and to refuse all attempts from me to get together to see if we could find a positive way forward.

"Based on my experience I decided to submit evidence to the House of Lords Inquiry and last week met with the First Minister of the Welsh Assembly Mr Carwyn Jones. I hope this strategy will be a more effective way to change hearts and minds at Higher Educational Institutions. But I'm not holding my breath..."

Andrew Brenton

Amongst ALLFIE's recommendations to the HOL Select Committee, we have proposed that the Equality Act must include inclusive education principles, outlaw segregation on the grounds of disability and set the standard for Government education policy. To see ALLFIE's full response see Allfie's website.

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Book review

Radical Inclusive Education
Disability, teaching and struggles for liberation
Anat Greenstein
Routledge
ISBN 978-0-415-70925-5

Micheline Mason

Not all parents who fight for a supported mainstream school place for their disabled child think of themselves as political revolutionaries, but this book helps to explain why they are – whether they like it or not.

Drawing from her own research as well as the radical teachings of Ivan Illich and Paulo Freire who have challenged the fundamental purposes of education within the political frameworks of their day, she suggests we cannot understand the nature of the struggle for real inclusive education outside the competing value systems of the State and the oppressed:
"I subscribe to a view of disability as an axis of oppression and marginalisation".

She scrutinises educational policy through this lens:
"For the government the chief purpose of education is to develop the skills and the disposition necessary for the individual, competitive, technocratic labour market of post-Fordist, globalised capitalism"

In this frame she claims our Government, even in its 'Every Child Matters' programme portrays:
"Being employed as the sole way of participating in the public sphere and the source of personal fulfilment."

Proponents of inclusive education of course have very different values and definitions of purpose around belonging, connection, creativity and equality.

Anat is quite brave in asserting that those who have built the liberation movements, whether they be class, gender, ethnicity or ability-based have much to teach schools about how to raise awareness within the school community of the reality of other people's lives and struggles, if we are serious about being able to move towards real inclusion.

My problem with this book is, at first reading, with its academic style and difficult language, aimed primarily at other academics. But I think this only underlines a deeper problem for me. Although Anat suggests the 'oppressed' should be teaching the 'oppressors' she fails to mention the years of labour put in by disabled people under the umbrella of Disability Equality Training, in schools, with parents and with disabled young people. To be fair to Anat, this omission is endemic throughout the writings of disabled people and the movement in general, so she did not have much grist for her mill ('Grist for her mill' means material to draw from) on this front, but the result is an implication that this work is still to be done rather than recognising the fact that it has been our success in this field over the last twenty years which has become too threatening to the Government and its neo-liberal mission. This I believe is why we are facing such a backlash.

My question is whether this empty space is because the DET initiative inevitably started from the grass roots – from the excluded and marginalised - without waiting for or requiring validation from the universities, qualifications and so on, which would have been impossible. If something is created by people who do not have several letters after their names, and who have not published an account of their work, it seems like it hasn't happened. Is this not just an example of classism? Is this why even disabled people find it hard to recognise our own work?

Despite these criticisms, I am glad this book puts so many apparently individual struggles into a wider radical, collective, political framework for change.

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Disabled Students Allowance update

Simone Aspis (our Policy and Campaigns Coordinator) gives us an update on the Government's plans to drive through unpopular reforms to the Disabled Students' Allowance.

Campaign work on the Disabled Students' Allowance still continues. Jo Johnson (Minister for Universities and Science) recently ran a "Consultation on targeting funding for disabled students in Higher Education from 2016/17 onwards" containing details of substantial reforms the Government is planning to make to the Disabled Students' Allowance (DSA). The Government's preferred option remains for universities to fund certain types of support that disabled students require under the duty to make reasonable adjustments imposed on them by the Equality Act 2010.

Our immediate concern on reading the consultation was that the Government's proposals and options (including retaining the Disabled Students' Allowance) were not presented in an accessible way for many disabled students. This means that participation may have been affected not only by timing (the consultation being launched at the start of the summer holidays), but also the way the consultation was presented, in terms of its technical accessibility.

Last year the Government attempted to cut Disabled Students Allowance substantially and without formal consultation, by forcing universities to pay for the support disabled students need. The first that ALLFIE and thousands of disabled students learnt about the Government's attack on the DSA was through the publication of a Ministerial statement made by the Minister for Universities, Greg Clarke.

Three disabled students, supported by the Alliance for Inclusive Education, the National Deaf Children's Society and Ambitious about Autism, took the Government to court, seeking a judicial review of the reforms proposed by the Department for Business, Innovation and Skills. The judicial review cases centred on the Government's duty to consult, the quality of the consultation process, and due regard for assessing the impact of the reforms on disabled students' equality of access to mainstream education. Several weeks before the General Election, the Coalition Government decided not to continue defending their position that the decision-making process around the reforms was lawful. Because the Judicial Review process was initiated, the Coalition Government postponed all DSA reforms until the academic year starting 2016, subject to more consultation with disabled students and more equality impact analysis.

One of the three students who challenged the Government is Zanna. Zanna is a deaf student who successfully passed Art and Design, Geography, and English Literature A levels this year, and has started a one year Art and Design Foundation course at Manchester Metropolitan University. Zanna commented:
"We needed to take action that would make sure our voices and opinions could be heard. I believe that it is vital for disabled students to have a voice. We deserve to have a say in changes that affect our education and future prospects, and without DSA, many disabled students would not even consider university."

A similar view is shared by Jhon Bateman, another of the protesting students. Jhon has A levels in History, Sociology, and Government and Politics, an AS Level in Law and a place at the University of Bath to study Politics and International Relations.
"Without the support of DSA to fund expensive equipment and pay support workers, I would not be able to afford to go to university and study safely and effectively. I hope to have access to assistive technology such as a laptop and dictaphone as well as ergonomic equipment."

Joseph Bell (a University student who went to court) says:
"Without DSA, I wouldn't have been able to afford my own ensuite bathroom when starting university. This provision helped to reduce my anxiety."

DSA is a vital support stream for disabled students. As Zanna says:
"DSA would give me and many others a sense of security in knowing that support can be put in place to create a safe, inclusive environment for disabled students."

Despite disabled students stating clearly the ways in which the DSA provides consistency in support, adapting to individual need, the Government still wants to push ahead, forcing universities to bear more of the costs of arranging disabled students' support. As Keshi Chung, a PHD student at King's College, London, who provided a witness statement in support of the judicial review case stated:
"It has been acknowledged by BIS [the Department for Business, Innovation and Skills] that these reforms will have a negative impact on disabled students and increase the likelihood of them facing discrimination at university."

Disabled students have felt that leaving it to universities to arrange support will lead to a great deal of uncertainty. The DSA reforms do not provide legal guidance on what types and levels of support universities are required to provide within their duties under the Equality Act 2010 to make reasonable adjustments.

Zanna says:
"Without DSA funding, I have growing concerns that universities may not be able to give me the full support that I need in order to achieve my full potential, limiting my chances of a more successful future and reducing my ability to follow my chosen career path."

Without the legal challenge, Zanna, Joseph, Jhon and thousands of other disabled students would not have benefited from retaining the DSA arrangements for one more year. These three disabled students have been supported by witness statements from both ALLFIE and the NUS Disabled Students' Campaign. It was only weeks before the General Election that the Government conceded, admitting that they needed to consult further with disabled students and to undertake further equality impact analysis regarding the effect of DSA reforms on disabled students entering higher education.

Disabled students have become more empowered through taking legal action, achieving a greater voice for disabled students. For Zanna, the legal challenge has provided her with her first taste of student activism.
"Challenging the government is the first form of student activism I have taken part in. However, as I grow older, my opinions are becoming stronger and I wouldn't hold back from taking part in something I feel passionate about."

There is certainly nothing holding Zanna back when thinking about what she would do if she had the job of Government Minister for Education - including promoting deaf children's inclusion in mainstream education.
"Encouraging an inclusive environment is the main thing I would change. The beginning of this would be to introduce British Sign Language into the curriculum, allowing both deaf and hearing students to learn sign language, endorsing communication and deaf awareness training within schools."

Jhon Bateman, who has been an active ALLFIE member and a Department for Work and Pensions Young DPULO Ambassador, says:
"We need to be listened to when decisions are made that affect us and our care. It's also very important to ensure that when we are listened to, our opinions are valued and acted on rather than being ignored."

Joseph Bell says:
"I would ask a wide variety of disabled students who have already been through the system to use their experiences to help other students who are of similar needs when they went through the system."

We are currently exploring all options due to the Government's determination to push through the DSA reforms for the second time with scant regard for the voice of disabled students. The consultation closed on 24 September 2015.

You can read more about the proposed changes in Briefing no 47 at Allfie's website.

Simone Aspis

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New Law - another attack on inclusion

Tara Flood

Six weeks after the General Election and with a new Conservative majority Government in power, we are already facing another attack on inclusive education. After the speeding train that was the Children and Families Act 2014, ALLFIE thought we might have a slightly quieter time of it as the new Act was bedded in – it turns out we couldn't have been more wrong!
The post-election Queens Speech included a new Education and Adoption Bill which the Government claims will:
"Give all children the best possible start in life. Strengthen intervention powers in failing maintained schools. It will make clear that the solution for inadequate schools is to become a sponsored academy. It will also give the Government powers to intervene in coasting schools and to require action from those schools which have not seen pupils make sufficient progress."

In reality the Education and Adoption Bill will remove the opportunity for parents and community based groups to challenge academisation of local maintained schools, it will introduce new powers for the Secretary of State for Education to force 'underperforming' maintained schools to become academies and create a new definition of failing schools which would be identified as "coasting" schools.

The details of the "coasting" school definition have yet to be agreed and a consultation on this will be out in the early autumn – according to the Education and Adoption Bill team at the Department for Education. What we do know is that a "coasting" school will be a school that is failing to demonstrate year on year academic progress across its pupil/student population. What is also clear from our discussions with members of the Bill Scrutiny Committee is that very little thought has been given to what this would mean for disabled pupils and students with SEN.

How can it be the case that labelling schools that don't show what will be a narrowly defined measure of progress, will give all children the best start in life – in fact it will force schools to increase the practice of teaching to the test and increase the fragility of mainstream placements for those pupils and students that cannot demonstrate their learning in standardised ways.

The threat of a "coasting school" label is more likely to further demoralise an already demoralised teaching and support workforce: the new threat of direct Secretary of State intervention, forcing academy status on schools, can only make things worse. The track record for academies in terms of their support for the inclusion of disabled pupils and students isn't great as recent legal cases have shown: academies such as Mossbourne Academy in Hackney and the Harris Academy in Crystal Palace have highlighted examples of disability-related discrimination.

ALLFIE first raised its concerns that disabled pupils and students could be adversely affected as a consequence of the Academies programme during the passage of the Academies Bill in 2010. Good inclusive education practice is best achieved by schools working cooperatively, rather than in competition with each other. Now that Local Authorities have lost their role in promoting inclusive education practice, coordination of schools admissions and funding for SEN support services, many maintained schools that have become Academies are less willing to admit disabled pupils and students with SEN.

More recently, evidence is showing that the situation for disabled pupils and students with SEN in mainstream schools that convert to Academy status is not good. In 2014 the Independent Academies Commission found evidence of academies moving disabled children and young people with SEN into alternative segregated provision. Increasingly ALLFIE is hearing from parents about their experience of local academies unwilling to enrol disabled children with SEN. A new definition of a "coasting" school will only exacerbate the situation and the likely outcome is that more disabled children and young people who are unable to demonstrate their learning through current standardised methods will be moved from mainstream schools as the pressure increases to deliver year on year academic improvements across the school community.

The National Union of Teachers report "Inclusion: Statements of Intent" (published in April 2015) found many maintained schools are taking on disabled pupils who have already been rejected by local academies. Any maintained schools deemed to be "coasting" will be under enormous pressure to improve their pupils' educational attainment and achieve better exam results year on year in order to escape academisation. ALLFIE has real concerns that this will act as a disincentive for Head teachers of maintained mainstream schools to admit disabled children and young people.

As parliament returns after the summer recess, ALLFIE's campaigning focus will be on highlighting the key elements of the Education and Adoption Bill that will have a negative impact on the inclusion of disabled pupils and students with SEN, namely new powers for the Secretary of State for Education to force academisation and the "coasting" schools definition, both of which we think are likely to have the biggest impact on disabled pupils and students with SEN. We will continue to lobby both MPs, seeking their support for our amendments to the Bill, and Peers as the Bill moves to the House of Lords.

The Education and Adoption Bill was already in Committee stage before the summer recess and there is a plan to push it through the House of Lords quickly with enactment early next year. There is no doubt that the Education and Adoption Bill is about the Government's intention to finish the job of making all maintained schools academies and never mind the consequences for those young people who do not fit into the highly competitive culture that academies encourage. This ideology alongside the further cuts we can expect to Local Authority SEN Support services will only make it harder for disabled children and young people with SEN to seek out and get the right support in inclusive education settings.

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Box

I was once told I was special
put inside a box facing the outside world
live inside till you're old or dead

just a creature to be looked at and stroked
others rolled on their bellies, I sat growling
I was once told I was special

what are you doing, they said
we get fed here, the real world would just want us dead
live inside till you're old or dead

I don't want to be special
I just want to be a Neal, whoever that is
I was once told I was special

I'd rather be dead than live here
a place that waters down hopes and optimism
live inside till you're old or dead

I wanted to write, you said that is not a realism
if I can't write I'm not going to be real
I was once told I was special
live inside till you're old or dead

 

Neal Pike
Neal is a writer, poet, human interested in the many guises of nostalgia and reflection and the shining light that is always there but can't be seen called hope and how music is the source for everything.

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What are the benefits to Inclusive Education of Recent SEND Reforms?

Richard Reiser (World of Inclusion)

It is now one year since the biggest shake-up in more than thirty years of the legal provision in England of the education of disabled children and young people and those with Special Educational Needs. Now the optimism and confusion is settling down, what are the benefits to inclusive education? It is still too early to take a definitive view. The Pathfinders (30 Local Authorities) final evaluation sends out mixed messages. There was more family involvement but the same proportion of families were dissatisfied as previously (20%), there was not enough choice and little evidence of improvement in health provision or quality of life for children involved. It would certainly have been beneficial to frame the legislation after this, rather than before.

Why then change a system that could have been reformed, rather than replace everything? The Government wanted to make its mark, they were responding to parental concerns, but it does not seem from the Pathfinders that these have been adequately addressed. In line with the Tory idea of introducing a free market in education under the guise of parental choice, schools and colleges are freed up from bureaucracy. The problem for the Government was that they had to give more statutory duties to Local Authorities to administer all these changes, whilst encouraging schools to go their own way.

The Children and Families Act (2014) Part 3 and associated Special Educational Needs and Disability (SEND) Code of Practice (CoP) 0-25 years outline the changes in detail. On paper gains would include the following:

• A presumption of mainstream provision and governors/proprietors must use their best endeavours to achieve good educational outcomes
• Encouraging Choice - Local Offer for a full range of provision, both mainstream and special
• Education, Health and Care Plans (replacing statements and Learning Difficulty Assessments in post 16) to cover 0-25
• Child/Young Person & parents are centre stage
• Education Health and Care Plans are outcome focussed - Preparing for Adulthood
• Focus on transition (Early years/Primary, Primary/Secondary, Secondary/Post 16, Post 16/Adult Life)
• Encouraging the development of a Person Centred Planning approach
• Equality Act (2010) General Equality Duty - Promote Disability Equality is emphasised (chapter 1 CoP)
• Brings together the auxiliary aids part of the reasonable adjustment duty and protection from disability discrimination
• School flexibility to meet needs - top up funding from local authority for higher needs (over £10k)
• Academies, free schools and maintained schools and colleges under the same duties
• Schools, colleges and other providers are under a duty to help the local authority implement their functions.

Paragraph 1.26-1.27 of CoP will need to be continually referred to by those championing inclusion.
"A focus on inclusive practice and removing barriers to learning
1.26 As part of its commitments under articles 7 and 24 of the United Nations Convention of the Rights of Persons with Disabilities, the UK Government is committed to inclusive education of disabled children and young people and the progressive removal of barriers to learning and participation in mainstream education. The Children and Families Act 2014 secures the general presumption in law of mainstream education in relation to decisions about where children and young people with SEN should be educated and the Equality Act 2010 provides protection from discrimination for disabled people.

1.27 Where a child or young person has SEN but does not have an EHC plan they must be educated in a mainstream setting except in specific circumstances."

Advocates of inclusion should also remind local authorities of their duty to support & involve children and young people in carrying out their functions:

" (a) the views, wishes and feelings of the child and his or her parent, or the young person;
(b) the importance of the child and his or her parent, or the young person, participating as fully as possible in decisions relating to the exercise of the function concerned;
(c) the importance of the child and his or her parent, or the young person, being provided with the information and support necessary to enable participation in those decisions;
(d) the need to support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcome"
(Section 19 of the C&F Act 2014).

This also applies to schools and colleges by virtue of clause 29.3.
Section 29.3 states
"The appropriate authority (governors or proprietors or management committee of (a) mainstream schools; (b) maintained nursery schools; (c) 16 to 19 Academies; (d) institutions within the further education sector; (e) pupil referral units; (f) alternative provision Academies must co-operate with each responsible local authority, and each responsible local authority must co-operate with the appropriate authority, in the exercise of those functions."

These functions apply to all disabled children and young people and those with SEN. This means all these providers of education will have to do much more than they have been doing to encourage participation, to involve disabled children, young people and their parents and to achieve the best possible educational outcomes. This will mean mainstream schools and colleges developing their capacity to include.

The move from School Action and School Action Plus to one category of school support has caused concerns. The recent data from the DfE on SEND statistics (July 2015 DFE SFR25 Jul 2015) shows a worrying drop of 195,000 pupils. Many of these will have had behaviour management issues, and unless they have underlying social, emotional and mental health needs they will no longer count. These statistics cover 18.2% of school pupils on School Support or with a statement or EHC Plan and for the first time give a breakdown of their main presenting impairment. Of these 1,537,610 only 103,600 are in special schools, the rest are included in mainstream schools. So despite a rise in the special school population last year by 4,500, inclusion is very much the order of the day in England in 2015.

For those pupils with a statement of SEN they will need to have an EHC Plan by 2018. Pupils newly identified as needing additional support, extra or different from that the mainstream school usually provides will need a new EHC Plan. In both cases they must have an assessment. Though dropping, 50.9% of the 236,165 with a statement or EHC Plan still attend mainstream schools. [It was 57.2% in 2007]. The EHC Plan is a long and complex document, but it is legally binding. IPSEA have produced some excellent guidance on what should be in your EHC Plan.

The only reason to refuse where parents or the young person want mainstream provision for their EHC Plan is given in Section 33.
"The local authority must secure that the plan provides for the child or young person to be educated in a maintained nursery school, mainstream school or mainstream post-16 institution, unless that is incompatible with... (b) the provision of efficient education for others."

The (local authority) governing body, proprietor or principal of a maintained nursery school, mainstream school or mainstream post-16 institution may rely on the exception in subsection (2)(b) only if they show that there are no reasonable steps that they or the local authority could take to prevent the incompatibility.

However, while Section 35.2 states that for those with SEN being educated in mainstream schools, the school must secure that the child engages in the activities of the school together with children who do not have special educational needs, subject to subsection (3):
"(3) Subsection (2) applies only so far as is reasonably practicable and is compatible with—
(a) the child receiving the special educational provision called for by his or her special educational needs,
(b) the provision of efficient education for the children with whom he or she will be educated, and
(c) the efficient use of resources".

This is a great weakness and invites schools to highlight these incompatibilities in refusing to admit the child rather than making the reasonable adjustments necessary. To ensure these are made will require advocates to use the Equality Act to challenge disability discrimination and the school's failure to promote equality.

Those of us who champion inclusion would not have drafted this legislation in this way, but it can still be used to aid the struggle for inclusion, pending a Government being elected that believes in comprehensive inclusive education.

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The Work of Communities Empowerment Network

Deuan German

Communities Empowerment Network (CEN) is an education advocacy charity based in Lambeth and providing a London wide service. It provides advocates to advise, support and represent parents and their children who have been excluded from school at Governor Disciplinary Committees and Independent Review Panels.

CEN was co-founded in 1999 by Gerry German who enrolled educator and activist Professor Gus John and a group of lawyers, educators, social workers and community activists concerned with the level of school exclusions affecting African-Caribbean children in particular, to join the board of trustees. The service aims to both help minimise the use of school exclusion and to counter its damaging effects by facilitating a swift return to full-time, mainstream education.

Gerry consistently articulated a nil-exclusions policy for CEN based on his assertion that exclusion from school is merely a substitute for the dehumanising policy of corporal punishment and spanking children's bottoms as a form of institutional retribution and behaviour modification. Gerry had been the headmaster of Wales's largest comprehensive school, taught in one of the toughest inner city London schools and been a secondary school teacher in Jamaica. His position was therefore not simply one of idealism but was grounded in his own experience, a commitment to justice and equality as well as willingness to challenge discrimination and oppression based on class wherever he encountered it.

School exclusion has disproportionally impacted some of the most vulnerable in society for decades and continues with the full support of government and the DfE. In the latest DfE figures on exclusion published in July 2015 the ethnic breakdown of the exclusion rates shows travellers' children have the highest rates of permanent exclusion while black Caribbean and white and black Caribbean ethnic groups were around three times more likely to be excluded than the average pupil, a figure in line with previous years. Children entitled to free school meals were four times more likely to be permanently excluded. Pupils with special educational needs (SEN) (with and without statements) account for some 7 in 10 of all permanent exclusions.

CEN is witnessing a significant number of academies, some touted as beacons of good practice by our leaders, flagrantly disregarding the DfE guidance on exclusion which exists to uphold the rights of pupils and parents. These are resulting in a scandalous number of illegal exclusions. Despite CEN's challenges at hearings and appeals, the power to overturn exclusions has been fundamentally diluted by giving head teachers more power than ever before to ensure what the DfE refers to as 'strong discipline in the classroom'.

This is further compounded by the fact that stand-alone academies, free schools and academy chains, overseen by central Government (and their agencies such as the Education Funding Agency and Regional Schools Commissioners), lack transparency and are undemocratic. Many chains operate on a national, not a local level. They are accountable only to the Secretary of State for Education through a legal document known as a funding agreement, not to parents or local communities and certainly not to their own pupils.

CEN provides a vital service for parents with nowhere to turn to. Whilst an exclusion hearing or appeal for head teachers, school governors, clerks and appeal panels is merely 'another day in the office', for a parent and their child it can be a terrifying and intimidating encounter, even if they understand (more often than not, they don't) the complex legalistic procedures. Unfortunately it is a situation that some unscrupulous head teachers take full advantage of.

CEN provides a free advocacy service to parents of children excluded from school across London.

For advice, support and representation
call CEN's Hotline: 0207 733 0297
or email info@cenlive.org
website: www.cenlive.org

 

Advocate's View
Lucy Bartley (SEN advocate)

Since starting as an advocate at CEN for children and young people with SEN/D 10 months ago I have met and worked with over 30 families all of whom were facing school exclusions.
My role is very varied, ranging from supporting families with legal hearings to accompanying them on school visits, but in every case my approach remains the same - to ensure the child or young person's wishes and aspirations are at the forefront of everything.

To give you a couple of examples:

James (not his real name), a dual heritage 13 year old, was in year 8 at secondary school and experiencing problems. His father had recently died and he was frequently getting into trouble at school to the extent that he was at risk of being permanently excluded.

His mother contacted CEN, and explained that she felt the school were not understanding the underlying issues for James including the fact that she suspected he had ADHD. She wanted support with school negotiations and so after meeting both her and James and finding out in depth what James felt he wanted and needed, I helped her draft a request for a meeting with all key professionals at school including the SENCO.

I supported James and his mother to draw up their agenda for the meeting and I attended the meeting with them.

After three meetings with the school where James was able to express what he thought, felt and needed, I was convinced that there was a commitment from the school to better support James in the future including ensuring that all his teachers used the same agreed strategies to avoid unfairly sanctioning him.

James is now much happier at school and his mother feels that she understands James more and is much more confident about working with the school in the future.

Jack (not his real name), is 5 years old of dual heritage, and when his mother contacted CEN had just been excluded from his infant academy two weeks before receiving his diagnosis of ASD.
I met with Jack, his mother and his siblings at home and spent considerable time unpacking what Jack felt and wanted, as well as his mother's views.

My role in this case was to try and negotiate with the head teacher an alternative to exclusion, to work with the Local Authority to also support alternatives and to ensure that Jack's voice and views were represented throughout.

I prepared legal representations for both the Governors' Committee and the subsequent Independent Review Panel and attended both where, as the advocate, I made the case for the exclusion to be quashed. I also ensured that all present were made fully aware of the relevant law including the Equality Act 2010 and the Children and Families Act 2014, their statutory duties under the law and the specific protection that this should afford the child.
The school had to reconsider its decision to exclude as a result of CEN's intervention. I will continue to work with the family to ensure that Jack is well supported in school in the future.

Names have been changed to respect confidentiality

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Legal Question

"I am an 18 year old disabled person and want to go to college to do a business studies NVQ Diploma course. I will need some learning support and some flexibility in the curriculum. My local college has said they don't think this is possible. What can I do / what are my rights?"

Your next steps will depend on if you have a Statement of Special Educational Needs (Statement), a Learning Difficulty Assessment (LDA), an Education, Health and Care Plan (Plan) or none of these.

If you do not have a Statement, LDA or a Plan
You should write to your Local Authority (LA) and ask for an Education, Health and Care Needs Assessment (Assessment). You should tell them about your disability, difficulties you experienced in your studies, and the support you need in college. Your LA will have six weeks to decide whether to carry out the Assessment.
If they agree to Assess, when it is completed, your LA will decide whether or not to provide you with a Plan. If they decide to issue a Plan, they must do this within 20 weeks of the date you asked them to Assess. If your LA decides not to Assess or issue a Plan, you can appeal to a Tribunal. You can also appeal if you get a Plan but are not happy with what it says about your educational needs, provision or placement.

• How will a Plan help me?
If a Plan is issued, it will set out your views, interests and wishes for the future, your special educational needs, the support you require to meet your needs, and your college placement. If you are assessed as needing learning support and a flexible curriculum, then your Plan should clearly record this.

• What will the college have to do?
If you get a Plan, your LA will have to ensure that you are provided with all the support recorded in it. If your college refuses to provide what is in the Plan, you should notify your LA and ask them to speak to the college about this. If this does not resolve the problem, you should seek legal advice.

• If you already have a Plan
You should check if it includes the support the college is refusing to provide. If it does, you should seek legal advice. If the Plan does not include the support, you should ask your LA for a reassessment of your needs. If they agree to carry out a reassessment, then the advice above in relation to Assessments applies. If they refuse, you can bring an appeal to the Tribunal.

• If you already have a Statement
You should ask your LA to transfer your Statement into a Plan as soon as possible as Statements do not apply to students in further education. If they agree, they will carry out a Transfer Review, which is the same as an Assessment and the advice above will apply.

• If you already have an LDA
You could ask your LA to review your LDA to assess and record the support you will require in college. Alternatively, you could ask your LA to carry out a Transfer Review in order to transfer your LDA to a Plan. Again, this would be the same as an Assessment. Asking for an Assessment rather than a review of an LDA is normally better because it is easier to bring a legal challenge if the LA refuses, or if you are unhappy with the content of a Plan. However, this will depend on your circumstances and you should seek legal advice if you are unsure.

• Is there anything else I can do?
You could talk to your college to explain why you need the support and ask if they could put it in place. Colleges have a legal duty to make reasonable adjustments for students with disabilities and if they do not, you may have grounds for a discrimination claim. You should seek legal advice if you think you might.

Lenka Wall, Trainee Solicitor, Maxwell Gillott Solicitors.
Maxwell Gillott specialise in legal advice and assistance for clients facing difficulties with education, health and social services. www.maxwellgillott.co.uk

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