Coronavirus Bill Debate 23 March 2020
ALLFIE Briefing March 2020
Disabled People’s Human Right to Mainstream Education and Government Position on Coronavirus
The Government has an obligation to promote disabled pupils’ human right to inclusive education under UNCRPD Article 24. An interpretative declaration included the Government’s commitment to enhancing the capacity of mainstream schools to include disabled pupils of all abilities. Additionally, the Government has incorporated the European Convention on Human Rights (EHCR) into domestic law through the enactment of the Human Rights Act, including both Protocol 1 Article (2) and ECHR and Article 14 – the right for disabled students to mainstream education free from disability-related discrimination.
ALLFIE recognises that this is a highly challenging time during which the Government must balance the resources needed to fight the coronavirus, COVID-19, whilst simultaneously ensuring that the nation functions as normally as possible. When the Government considers relaxing the duties of public bodies to provide services, it must not adversely affect disabled people. It is therefore not only disabled adults but also disabled children’s right to both education and health and care services that must be protected to ensure they have every opportunity to remain both physically and emotionally well whilst being educated within mainstream educational settings.
Clause 35 Regulation 15 Temporary closure of educational institutions and childcare premises
The Government has finally announced the closure of state schools for the overwhelming majority of children. However, schools will remain open for ‘vulnerable’ children such as those whose parents are key workers, children who have social workers and children with education, health and care plans. The Government has also announced that special schools are expected to follow governmental COVID-19 advice and remain open for all disabled children.
How has the Government made the decision for disabled pupils with EHCPs to continue attending their special schools. This seems to conflict with the Government’s own professional advice to the general population to stay at home if an individual is at higher risk from COVID-19. We expect that many parents will not want their disabled children to be exposed to COVID-19 whilst in special school and therefore want the option to withdraw their child from school; indeed, many parents are “immensely frustrated at the lack of specific guidance coming from the government relating to” disabled children, in addition to the potentially “catastrophic consequences”.,  However, many of these families will not have the structured support offered in many special schools and therefore may be forced into accepting the extra risk of being exposed to COVID-19. If this Government wants to ensure that all children minimise their risk of contracting COVID-19 then they need to provide the necessary funding and infrastructure to allow disabled children to continue to receive the support and routine they require within their own homes.
Clause 36 Regulation 16 Temporary continuity: education, training and childcare
The Government wants to suspend Disabled childrens’ rights to special education needs support within educational settings.
The Government wants to give the Secretary of State for Education the power to vary, disapply or modify the protections afforded to disabled children under the Children and Families Act 2014. In particular, the Secretary of State for Education will have the power to amend the Children and Families Act 2014 s(43) and s(42) to allow local authorities to arrange the education, health and care provision specified or to name a school in the child’s EHCP. The proposed amendment will allow the local authority to use reasonable endeavour in discharging the local authority’s duty in securing SEND provision for disabled pupils.
Over the past decade, there has been a steady decline of disabled pupils with EHCPs being educated within mainstream schools. Disabled children are increasingly either being educated outside mainstream education or are not in receipt of any form of education, including structured home education. This can be explained by mainstream schools repeatedly reporting they possess insufficient resources to arrange the SEND provisions required for disabled students; this will become more acute if local authorities no longer have a legal duty to secure and arrange such SEND provision. We fear that without local authorities being required to secure the SEND provision in mainstream schools, the numbers of disabled pupils being excluded, off-rolled and segregated will increase fourfold. Furthermore, education, health and care provision is often necessary to preserve disabled pupils and students’ life.
For many disabled children with lifelong and life-threatening conditions, the health and social care support they require is necessary to not only maintain and stabilise their conditions but also to reduce the risk of contracting infections and viruses such as COVID-19. Some examples are as follows of how health and social care support in schools are necessary to reduce their risk of contracting COVID-19 to protect both themselves and others.
- Disabled children with Cystic Fibrosis (CF): Many children with CF will need physiotherapy, assistance with taking medication and looking after by qualified health and social care professionals alongside other reasonable disability-related adjustments. The assistance provided in schools may prevent expensive inpatient hospital care for complications associated with CF, including risks from viruses and infections. This physiotherapy and medical attention substantially reduces a life-threatening condition such as CF.
- Disabled children with profound learning difficulties or physical impairments requiring assistance to maintain health and wellbeing: Social care support would include assistance with dressing, feeding, toileting and personal hygiene. Given the NHS prioritises advice around personal hygiene, it is more important than ever that social care workers are employed to assist disabled pupils who need extra assistance with tasks such as washing their hands and avoiding touching door handles to reduce the risk of COVID-19.
- Disabled children with OCD or autism: These children may well need assistance with adapting or changing routines to minimise their exposure to COVID-19.
- Disabled children with epilepsy: Some types of epilepsy are less controllable and more life-threatening and so require prompt intervention by trained health and social care staff.
The Government wants to give the Secretary of State for Education the power to vary, disapply or modify the duty of the local authority to name a school within the child’s EHCP under the Children and Families Act 2014 s(43)
The Government wants to suspend disabled children rights to mainstream education.
There is ample evidence confirming that mainstream schools are increasingly reluctant to admit disabled students, thus it is necessary for local authorities to maintain this duty. Our fear is that as more and more schools are facing tighter budgets, they are less likely to admit disabled pupils. Indeed, it is not only mainstream schools; special schools are increasingly refusing to admit disabled pupils. If local authorities no longer have an absolute duty to name a school, we fear that many disabled pupils will have no school to attend at all. Furthermore, we are concerned that local authorities will be able to move disabled children into segregated education if SEND provision for whatever reason is unavailable to them within mainstream education. We know once disabled pupils transfer into segregated education, they are less likely to return to mainstream education.
ECHR Protocol 1 and ECHR Article 14
Disabled pupils students have a right to be educated in mainstream education. The education system’s compliance with these articles is not simply just admitting disabled pupils into the institution; there are requirements for education institutions to take active steps such as making the building accessible and employing qualified personnel to assist disabled pupils with personal care, carrying books and equipment and alike. It is not only schools, but local authorities and the Government that must take responsibility for ensuring the necessary infrastructure is in place to facilitate disabled students’ right to mainstream education.
Clause 13 NHS and local authority care and support
The Government wants to suspend disabled peoples entitlement to community care
The Government wants to amend the Care Act section (18) and section (20) to replace the local authority’s duties with powers to meet adults’ social care eligibility needs unless there is a fundamental breach of human rights. Similar with relaxing local authorities’ duty around arranging SEND provision in schools, we are deeply concerned that disabled young people, when making the transition from children’s to adult services, may well lose out on the social care necessary for them to thrive within mainstream education settings.
To conclude, ALLFIE is concerned that disabled pupils and students’ requiring education, health and care services will either not get it or may only receive the provision within segregated and institutionalised settings if the Local Authority’s duties are suspended. The proposed changes to the Children and Families Act 2014 should be around strengthening of disabled pupils and students’ right to education, health and care support within mainstream educational settings.
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