Submission to the Education Select Committee Special Educational Needs and Disabilities Inquiry

Information about the inquiry.

Who is ALLFIE?

The Alliance for Inclusive Education (ALLFIE) is the only national Disabled person led organisation working on educational issues and particularly working to promote the rights of Disabled pupils and students to be included in mainstream education. We work in partnership with Disabled people, their families, schools, colleges and universities, parents and education professionals (www.allfie.org.uk). Inclusive education benefits everyone. It is only through Disabled and non-disabled people playing, learning, working and growing up together and building relationships with each other that we will achieve an inclusive society that welcomes all regardless of ability and background.

We are pleased that the purpose of the inquiry is to address the social injustices in the education system experienced by Disabled children and young people (DC&YP), including those with special educational needs. We are taking the opportunity to highlight social injustices that Disabled pupils and students experience as a result of failures within the SEND framework. These failures are:

• The government’s failure to uphold Disabled people’s human rights to inclusive education within Article 24 of the UNCRPD.
• The weakness of the legal framework established by the Children and Families Act (C&FA) in supporting the presumption of mainstream education for all.
• The C&FA does not comply with Article 24 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).

SEND language

Many children with SEN would fall under the disability definition and therefore be considered as a Disabled person under the Equality Act 2010. So ALLFIE uses the term Disabled children to include children with special educational needs.

Implementation of the Children and Families Act and relevance of a human rights agenda

The UK government have signed and ratified the UNCRPD, an international treaty consisting of recognised standards for promoting and safeguarding Disabled people’s human rights. Article 24 guarantees all Disabled pupils and students a right to participate in all forms of mainstream education with appropriate support. Additional text set out in the UK’s interpretative declaration states the government’s commitment to developing an inclusive system that involves building the capacity of mainstream schools to meet the needs of a broader range of Disabled children, including those with significant impairments. Thus, the government has an obligation to promote and build the capacity of the mainstream education system to educate all pupils and students including those with complex and profound learning difficulties.[1]

In August 2017 the UN Disability Committee scrutinised the UK government’s implementation of the UNCRPD. The Committee published its concluding observations, which included the UK’s failure to promote Disabled pupils’ and students’ human rights to inclusive education under Article 24.[2]

Current situation

The UNCRPD monitoring committee censored the UK government on the statistics regarding placements of Disabled pupils in mainstream and special schools. Between 2010 and 2017 the percentage of children in England with an Education, Health and Care Plan (EHCP) attending maintained special schools increased from 38.2% to 43.8% while those attending state-funded secondary schools declined from 28.8% to 22.2%[3]. These figures do not include Disabled pupils and students being home educated, in residential special schools or in specialist psychiatric inpatient units. Further, the numbers do not include Disabled children being placed in segregated provision whilst being on the roll of a mainstream school. Thus, the statistics severely underestimate the true extent of segregated education experienced by Disabled pupils and students within the UK.

Bias towards segregated education

The UNCRPD monitoring committee expressed concern at the increasing numbers of Disabled children being placed in segregated education as a result of government policies on schools admissions and exclusions, education funding and resources. Currently the government’s SEND capital grants are being used to establish new special school placements. During 2017 1,600 new special free school places have been created across England as 19 local authorities (LAs) invite applications to run new special free schools[4] to deal with the predicted growth of Disabled pupils and students within their catchment areas. LAs such as Bradford are not only expanding segregated education, but reducing mainstream provision for Disabled pupils.

“Many pupils with additional needs are currently taught in mainstream schools, but the council has decided that the needs of these children would be better met in specialist provision. Last year, the Bradford Schools Forum decided to move money from mainstream school budgets to make 360 spaces at schools with a specialist provision.”^[5]

One of the drivers towards increased segregated education is the government’s deliberate policy of reducing year-on-year real funding of mainstream schools and Disabled pupils with high needs. The Local Government Association and other professional bodies have all expressed their concern over the government’s schools and high needs funding policy which has affected their ability to promote inclusive education practice. The Local Government Association warned the government that:

“We are concerned that if councils do not receive sufficient funding to cover high cost SEND, they will not have the resources to allocate extra funds to highly inclusive schools above the notional SEN budget. The concern is that unless funding reflects needs, mainstream schools may be reluctant to accept or keep pupils with SEND because they cannot afford to subsidise the provision from their own budgets.”[6]

One of the core pressures on the LA’s high needs budget is the increasing number of pupils and students entering segregated education; this can run into hundreds of thousands of pounds per placement when taxpayers money could be used to facilitate mainstream educational placements.

The UNCRPD Monitoring Committee expressed concern that the UK’s dual education system is a source of social injustice, carried out under the pretext of parental choice. Parents do not actively choose special school provision.

“We had a meeting with the Head of Inclusion at W. LA…We were told that, for children like our son, inclusion was not “meaningful”, that there were no options and that he would have to go to a special school, even if we didn’t want it.” (ALLFIE Case study 2017)

All the parents we know who have sent their children to special schools do so because their choice of inclusive education has not been provided by LAs. Too often parents are forced to take up special school placements as a result of government’s systematic failures in supporting a fully funded and resourced inclusive education system.

Presumption of mainstream education is a qualified right

One of the biggest strengths of the C&FA 2014 should have been its presumption of mainstream education for all Disabled pupils and students regardless of ability. For Disabled pupils with SEN but no plan, their right to mainstream education can be precarious as success of the placement is often determined by the consistency and reliability of the support that Disabled children receive. Too often Disabled children are excluded from mainstream schools because SEN provision is not either arranged or consistently in place which often leads parents to request a special school placement; this is exactly what the UNCRPD findings highlighted as the failure of the UK Government.

Disabled pupils and students with an EHCP have a legal entitlement to SEN provision outlined in their plan and it must be arranged by the local authority. However, Disabled pupils and students without an EHCP have no equivalent legal entitlement to SEN provision. Instead they are simply reliant on mainstream schools and FE providers using their best endeavours to secure SEN provision for them.

Ambitious About Autism flag up the case of Alice[7], who is 14 and has autism. Her needs were not understood or met in school, leading to behavioural problems which were again not understood and poorly dealt with. This led to repeated short exclusions from the school. Her family ultimately removed her from the school as no measures were put in place to meet her needs; as they were unable to identify any other local school which could, she has been home educated for five years, with no support.

Disabled pupils and students and their parents can lose their right to mainstream education if requesting an EHCP. Clause 35 of the C&FA states that LAs are not required to place a child in a mainstream school if it is incompatible with (a) the wishes of the child’s parent or the young person, or the efficient education of other pupils. A case worker for Communities Empowerment Network (CEN – www.cenlive.org) explains how having an EHCP would mean that if her son started school today he would be forced down the segregated education route.

“S is an increasingly rare breed – as a young man with an EHCP requiring a flexible and bespoke approach to his education – you would expect now to find him in the special school enclosure as most mainstream schools/academies are shutting their gates either at admission stage or are excluding students with significant needs once they are in school often using unlawful and underhand routes.” (ALLFIE Case Study 2018)

Clause 35 of the C&FA allows local authorities to place Disabled pupils and students with an EHCP in a special school if no reasonable steps can be taken to remove the incompatibility with the efficient education of other pupils. Education caseworkers for various organisations have reported a steady increase of Disabled pupils being rejected by mainstream schools and declining support from LAs. Too often this test is a theoretical one based on prejudice as illustrated by two parents of Disabled children with significant impairments in separate London boroughs.

“The Council are not catering for all children, for example there are currently no options for children with severe learning disabilities in mainstream secondary schools in the borough.” (Waltham Forest Special Education Crisis 2018 website)[8]

Whilst strictly speaking the decision is taken by the local authority, a school’s view that admitting a child will be incompatible with the efficient education of other children in the school is likely to carry significant weight. A parent forced to place her Disabled daughter with severe learning difficulties into a special secondary school after she had been successfully included in primary school says:

“The C&FA 2014 supports parents’ right to choose a mainstream education, but it doesn’t say anything about what to do when mainstream schools show little or no interest in educating our children. When my daughter was in year 4, her big brother’s secondary expanded itself into a smart and spacious new building. There had apparently been room for a resourced provision if there had been an appetite for it. Is it any wonder, then, that the number of children with severe learning disability educated in special school has increased.” (ALLFIE Case Study 2018)

The “inefficient education of other children” caveat allows the same Disabled children to be treated differently by different schools and local authorities, which is informed in ALLFIE’s opinion by prejudice and is clearly a source of social injustice.

A parent of a Disabled son found that inclusion in a mainstream school was possible within the borough the family was living in but not the one that they were moving to. (ALLFIE Case Study 2018)

To illustrate this point we have found that Newham Local Authority schools have a reputation of admitting Disabled children from other boroughs, which consistently refuse to arrange SEN provision within their own local mainstream schools, as experienced by Finn (now being educated in Newham), who has significant physical impairments and learning difficulties.

“Around forty mainstream schools were contacted about a place for Finn and all except one refused. The LA did not support our preference for Finn to attend a mainstream school, claiming it wasn’t suitable and that children like Finn do better in a special school.” (ALLFIE Case Study 2016)

The Joint Committee on Human Rights (JCHR) highlighted the concerns they had when the Inclusive Schooling guidance accompanying the SENDA 2001 and Education Act 1996 was not replaced with any specific guidance under the C&FA 2014 setting out for local authorities and schools the principles of inclusive education and what is expected from them in terms of taking reasonable steps to remove the incompatibility with the efficient education of others[9]. This point supports ALLFIE’s argument that without guidance, it will be for individual LAs, schools and SENDISTs to decide for themselves on a case by case basis whether the child will be allowed to be educated in mainstream schools. JCHR expressed the view that the uncertainty around the implementation of the efficient education clause should be removed to achieve compliance with the UNCRPD Article 24.

The UNCRPD monitoring committee recommends speeding up the process of withdrawing the UK government’s reservation, which allows LAs to send Disabled children to special schools outside their local area often hundreds of miles away from their families. One of the barriers families face in accessing mainstream education for their Disabled children and young people needing various therapies is the location of availability. Many Disabled children / young people requiring education, health and care services are sent to residential or out of borough special schools. This is because Clauses 25 and 26 of the C&FA which place a duty on local authorities to commission integrated education, health and care services do not require such services to be available in parents’ preferred local mainstream schools.

The biggest source of social injustice is that Disabled children do not have an unqualified right to mainstream education. Disabled pupils and students are the only group of people who can be segregated because of their “protected” characteristic (under Equality Act 2010) which the UNCRPD monitoring committee have said is a breach of UNCRPD Article 24 standards.

The presumption of mainstream education can lead to segregated education

A key message from the UNCRPD Monitoring Committee is that inclusion is not simply about the Disabled pupil’s/student’s attendance at a mainstream school or FE college. Their guidance in Comment 4 sets out clearly that segregation occurs when Disabled pupils’/students’ education is provided in separate environments such as SEN units and segregated courses designed or used to respond to a particular or various impairments, in isolation from their non-disabled peers whilst on the roll of a mainstream school or college. Disappointingly, the C&FA 2014 does not comply with Article 24 standards because the presumption of mainstream education only covers a Disabled pupil’s/student’s right to get through the door of a mainstream school or college. Under the C&FA Disabled pupils/students can still face segregated education, as this parent experienced with Steve, her Disabled son with autism.

“Sending a child across the city to a mainstream school with separate unit for autistic kids to go to is not inclusion because it’s not in your local community…. I did not let him go to the unit across town because it would not have met his needs…There was 0 in mainstream class support! Just the unit to go and hide in when you can’t cope…” (ALLFIE Case study 2018)

C&FA 2014 clause 35 sets out the duty for schools to arrange SEN provision in a manner that will promote the child’s engagement in mainstream activities such as lessons and the like. However, schools can rely on clause 35 exemptions to segregate DC&YP as the presumption of mainstream clause does not entitle Disabled pupils and students to anything, as this parent explains:

“The removal of children from subjects is a bespoke package that the school have for children they do not think will pass GCSE. These assessments are all done in the first term of year 7 and are never done again. This option is designed for the SEN children of the school, none of which get any reasonable adjustment support. My son was taken to a classroom that they called learning support…” (ALLFIE case study 2018)

Segregation is endemic in the further education sector as we found the overwhelming majority of Disabled students with learning difficulties are placed on preparation for independent living and employment courses (from FOI requests made to London FE colleges during 2016, two years after the implementation of the Children and Families Act).

“Linda wanted to enrol onto a Level 2 Performing Arts course after several years of performing in plays for a local theatre company. Instead Linda was offered a place on a segregated ‘preparation for independent living’ course in the college’s separate facility for students with learning difficulties.” (ALLFIE case study 2014)

ALLFIE has found that these are not isolated cases; Disabled students’ lack of access to mainstream education was evidenced in 2011 by the NFER and Local Government Group report “Young people with special educational needs/learning difficulties and disabilities: research into planning for adult life and services”[10].

Segregated courses and campuses are forms of segregated education which are at odds with the intention of the C&FA presumption of mainstream and incompatible with Article 24 inclusive education standards as set out in comment 4[11].

Next steps in strengthening inclusive education practice

We want the Education Select Committee to consider the UNCRPD Monitoring Committee’s recommendations. In particular we want the Committee to consider the UNCRPD Monitoring Committee’s recommendation to government of developing a comprehensive and coordinated legislative and policy framework for inclusive education when making suggestions on how they can improve the SEND framework and strengthen Disabled pupils’ and students’ rights to mainstream education under the C&FA 2014:

• Implement UNCRPD Article 24 with the ultimate goal of developing a fully inclusive education system.
• Disabled pupils and students have an unqualified right to attend mainstream school/FE.
• Guidance sets out universal principles and practical implementation of inclusive education.
• The presumption of mainstream education covers all aspects of school/college educational experience including mainstream lessons, extra-curricular activities, field trips and the like.
• All Disabled pupils and students have the same legal entitlement to SEN provision (all must have EHCP legal entitlements).
• Education and SEND funding policies must be ring-fenced for Disabled pupils and students underpinned by the presumption of mainstream education principles.
• Joint commissioning of education, health and care services must be arranged for pupils and students in mainstream education provision.
• Education practitioners and staff are fully trained in working with Disabled pupils and students within inclusive education settings.
• Anti-disablist bullying and disability hate crime issues are core components of education establishments’ policies.

We know that mainstream education policies, underpinned by market principles, are having a negative impact upon LAs’ and education providers’ ability to implement inclusive education and their duty to promote Disabled pupils’ and students’ rights to mainstream education; these policies include academisation, increased grammar school provision, school performance tables and criteria (ie Progress and Attainment 8 and SATs), admissions, exclusions, funding, OFSTED inspections and qualifications reforms as well as school building regulations.

The UNCRPD Monitoring Committee recognised that an inclusive education system cannot be developed without Disabled people’s voices at the heart of its implementation. It should be co-produced with Disabled people (including children) and organisations led by Disabled people. This can begin by the Education Select Committee inviting us to give oral evidence to the SEND Inquiry.

To conclude, the Education Select Committee cannot begin to investigate injustices that Disabled pupils and students experience in the education system unless the inquiry examines government violations of Disabled pupils’ and students’ human rights to inclusive education, and the failings of the C&FA 2014 presumption of mainstream education. Furthermore the UNCRPD Monitoring Committee made some very reasonable recommendations which we believe are the basis for developing an education system based around supporting Disabled students’ human rights.

For further information contact Simone Aspis (Policy and Campaigns Coordinator)

Telephone: 0207 737 6030

Simone.aspis@allfie.org.uk

[1] UNCRPD Article 24 text https://www.allfie.org.uk/campaigns/article-24/

[2] DFE (2017) National Statistics on SEN

[3] UNCRPD Committee’s Concluding observations on the initial report of the United Kingdom of Great Britain and Northern Ireland (2017)

[4]  DFE (2017) Applications open to create 1,600 new special free school places Press Release

[5]  Telegraph & Argus (Jan 2017) Consultation into creation of 160 extra special educational needs places begins

[6] Local Government Association (March 2017) response to the Department for Education’s stage two consultation on high needs funding formula and other reforms

[7]Ambitious About Autism (2014) Ruled Out

[8] Waltham Forest SEN Cuts Website (2017)

[9] Joint Committee on Human Rights Legislative Scrutiny : Children and Families Bill Third Report of Session 2013-14

[10]Local Government Group & NFER (2011) Young people with special educational needs / learning difficulties and disabilities : research into planning for adult life and services

[11] UNCRPD Article 24 comment 4 text