The government is pushing forward with plans to change the law on the education of disabled children or those said to have special educational needs. These reforms have been hailed as the most significant reforms in the area for more than thirty years, yet they are being rushed through at a pace that leaves many critics significantly concerned. Alarmingly, the Pathfinders that have been designed to pilot some of the changes the government proposes to make, are not due to conclude until after the new law is expected to receive Royal Assent.

Almost two years ago, in March 2011, the Department for Education had published the Green Paper “Support and aspiration: A new approach to special educational needs and disability”. This was around 10 months into the current government’s term of office. More than a year later, in May 2012, the Progress and Next Steps document was published, with details of the Green Paper consultation responses, changes already in place, and next steps in taking plans forward. In September 2012 the Department for Education published the draft provisions that were expected to form the basis of the proposed reform. The Education Committee conducted a pre-legislative scrutiny and published the report of its findings last December. The proposed Children and Families Bill was introduced to the House of Commons on 5 February and received its second reading yesterday (Monday 25 February). Despite some of the Pathfinders having been extended to autumn 2014, the Children and Families Bill is expected to complete its passage through Parliament and receive Royal Assent in spring 2014, a time which could be significant for the lifetime of this government. In other words, as the media were quick to report, MPs have voted through a bill for key changes, with no clear evidence that these changes will bring improvement.

The Bill sets out to improve services for children who are considered to be vulnerable and seeks to reform the systems for adoption, looked after children, family justice and special educational needs. With regard to special education reform, CSIE’s concerns are focused on the weakened wording for the local offer and for the amendment to the draft clauses which means that disabled children who do not fall under the current definition of ‘special educational needs’ will not be covered by this law. The government’s justification is that they are already protected by the Equality Act 2010, but the fact remains that they will not be entitled to an Education, Health and Care Plan (the proposed successor of the statement of special educational needs.) For more information please see the joint briefing produced by the Every Disabled Child Matters (EDCM) Campaign and the Special Educational Consortium (SEC), of which CSIE is a member.

CSIE is disappointed that such a major law reform does not seize the opportunity to replace the term “special educational need” which seems to us to have outlived its function. Repeated criticisms of the term had so far been met with the argument that it cannot be abolished because it is embedded in law. The current law reform provides an excellent opportunity to replace this term with alternative, more appropriate, terminology. The term “special educational need” first appeared in law in the 1981 Education Act, which stated that children should be identified as having special educational needs if they have “a learning difficulty which calls for special educational provision to be made for them”. This definition still holds today and appears in the revised Code of Practice (2001). It has repeatedly been criticised as inadequate and, in the words of Baroness Warnock in 2005, is “the purest vicious circle you will ever know”. She added: “Well, that is not much of a definition but it is the only definition there is.” More than 30 years on, the term may only seem acceptable by virtue of its longevity.

Above all, CSIE is concerned that the Bill re-introduces 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, this Act had strengthened the commitment to inclusive education by removing two of the provisos of the general duty to educate in mainstream which had been in law since 1981. SENDA 2001 repealed two of the clauses from Section 316 of the Education Act 1996 (that the child receives the special education he or she requires and that there is an efficient use of resources) in the name of disability equality, on the understanding that these are matters of school organisation. These clauses had remained in Schedule 27 of the Education Act 1996, which was not amended by SENDA 2001.

Conditions specified in previous laws reflected the educational context of their time. The 1981 Education Act introduced the duty to educate all children in mainstream schools, as long as: this reflected parental wishes, did not hinder the education of other pupils and was compatible with the efficient use of resources. This, in the context of some children having been considered “ineducable” just 10 years previously (the Education (Handicapped Children) Act 1970 transferred the responsibility for providing for children categorised as “educationally subnormal (severe)” from health authorities to local education authorities.) The 1993 Act added a condition that the education received must be appropriate to the child’s needs and the 1996 Education Act, consolidating a number of education laws, maintained all four conditions. In the context of a national move towards greater disability equality, the Special Educational Needs and Disability Act (SENDA) 2001 removed 2 of the previous 4 conditions and stipulated that all children should be educated in the mainstream, as long as this is consistent with their parents’ wishes and with the efficient education of other children in the school. More than ten years on, in the context of today’s unconditional commitment to disability equality, there seems no need for any conditions to disabled children’s right to a mainstream education.

At a time when disability equality is more widely acknowledged and the government has confirmed its genuine commitment to parental choice of school, one could have expected that such a significant law reform would remove the third proviso on the duty to educate in mainstream (that this does not affect the efficient education of other children) on the understanding that this, too, is a matter of school organisation. This would have left only one proviso, that a mainstream education is consistent with parental wishes. We are deeply disappointed to see that the government has not seized this opportunity to demonstrate a commitment to disability equality. Instead, by keeping the existing proviso in the Children and Families Bill and re-introducing the clauses previously repealed, the government is effectively undermining parental choice. The message here is clearly that, for some parents, conditions will apply before their choice of mainstream can be honoured.

It is widely understood that the efficient education of other children depends on how teaching and learning are organised in a school. In some parts of the world there are no special schools; all children are educated in the mainstream. If some UK schools are concerned that the presence of one child will compromise the efficient education of others, they should be supported to develop their capacity to provide for the full diversity of learners; not be told that they don’t have to include disabled learners.

Last but not least, specifying conditions upon which parental choice of mainstream will depend, will be inconsistent with:

• 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.
• the government’s ratification of the UN Convention on the Rights of the Child, Article 23 of which is specifically concerned with disabled children. 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.”

the government’s ratification of the UN Convention on the Rights of Persons with Disabilities, Article 24 (Education) which stipulates an inclusive education at all levels. The interpretive declaration entered clearly states: “The United Kingdom Government is 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.”