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The report stage and third reading of the Children and Families Bill took place last Tuesday, 11 June, and the Bill received its first reading at the House of Lords on 12 June. The second reading is expected to take place on 2 July.

The Bill was left largely unchanged by its passage through the House of Commons, despite a number of amendments being tabled at Committee and Report stage. The Government continues to push forward its plans to change education law without a clear evidence base, while at the same time signaling that it sees no need for schools to respond to the call of disability equality. The Department for Education insists that all parents should have a real choice of school, but shows no intention of making the choice of mainstream possible for all parents in all areas.

The Children and Families Bill is expected to complete its passage through Parliament and receive Royal Assent in spring 2014 – a critical point in the Coalition Government’s term in office. The pace at which the Bill is progressing is worrying: key changes are being proposed with no clear evidence that they will bring improvement, or even protect current entitlements. Pathfinders designed to pilot some of the proposed changes are not due to conclude until after the new law is expected to be in place.

CSIE’s main concern, as we have said before remains the re-introduction of two clauses from the Education Act 1996, which had been repealed by the Special Educational Needs and Disability Act (SENDA) 2001. More than ten years ago these clauses had been removed in the name of disability equality. We struggle to understand why the government thinks it is appropriate to bring them back into law now. We also remain concerned that some disabled children and young people will not be covered by the proposed legislation, and disappointed that such a major law reform does not seek to replace the inadequate term “special educational need”.

We have also reported deep concerns with regard to the Draft Indicative Code of Practice published in March. We remain alarmed that the Statutory Guidance on Inclusive Schooling is at risk of being lost, despite government promises that this would not happen. We are also concerned at proposals to abolish the categories of School Action and School Action Plus without a suitable alternative, and believe that the introduction of Education, Health and Care (EHC) Plans will only work if time limits for statutory assessments are specified, a standard format for EHC Plans is adopted, social care is made an enforceable part of EHC Plans and a single point of appeal is ensured. Without these amendments, we remain deeply concerned that current entitlements stand to be lost.

The issues are many and complex. If fully committed to disability equality, the Department for Education should be supporting schools to develop more inclusive provision for all learners; not introducing legal clauses that undermine parental choice and making it sound acceptable for schools to turn away disabled pupils. If nothing else, new legislation should be consistent with current national and international law:

  • the Equality Act 2010. Early Years settings, schools and post-16 institutions have an anticipatory duty to make reasonable adjustments for disabled children and young people, and a duty to promote disability equality. It would seem clearer and more consistent if the Children and Families Bill were to refer to these duties, instead of repeating phrases that have been largely understood to signal that there is no need for the education system to change.
  • Article 23 of the UN Convention on the Rights of the Child. Of particular relevance is the General Comment no. 9 (2006) of the UN Committee on the Rights of the Child, which states: “The Committee emphasizes that the barrier is not the disability itself but rather a combination of social, cultural, attitudinal and physical obstacles which children with disabilities encounter in their daily lives. The strategy for promoting their rights is therefore to take the necessary action to remove those barriers.”
  • Article 24 (Education) of the UN Convention on the Rights of Persons with Disabilities, which stipulates an inclusive education at all levels. The UK government has committed to: “continuing to develop an inclusive system where parents of disabled children have increasing access to mainstream schools and staff, which have the capacity to meet the needs of disabled children.”