Response by the Children’s Law Centre to The Special Educational Needs and Disability (Northern Ireland) Order 2004 - Proposal for a draft Order in Council (MARCH 2004)

1.0 Introduction


1.1 The Children’s Law Centre was established in 1997. It is an independent non-governmental organisation, which helps children and young people, parents, carers and professionals work with and understand the law relating to children. The Centre is founded upon the principles laid down in the United Nations Convention on the Rights of the Child, in particular:

• Children shall not be discriminated against and shall have equal access to protection.
• All decisions taken which affect children’s lives should be taken in the child’s best interest.
• Children have the right o have their voices heard in all matters concerning them.

The Children’s Law Centres Mission Statement is:

‘The Children’s Law Centre, using the law to promote, protect and realise children’s rights’.

1.2 The Children’s Law Centre are committed in working to:

1) Compliment existing services provided by the voluntary, community , statutory and legal sectors,
2) Work in partnership with children and other agencies committed to realising children’s rights;
3) Provide a comprehensive and accessible advice service on children’s rights and law as it relates to children and young people;
4) Involve young people in helping direct the work of the Centre through Youth@ clc;
5) Coordinate research and monitor the implementation of the United Nations Convention on the Rights of the Child;
6) Provide education and training programmes to all stakeholders to increase understanding of children’s rights legislation.

1.3 Our work involves day-to-day contact with children and young people, their parents/carers and professionals employed by the Education and Library Board’s regarding education issues.

1.4 Kathryn Stevenson, Solicitor with the Children’s Law Centre, has been an active member of the SENDO Consortium set up by the Equality Commission for Northern Ireland in September 2002 to consider the consultation document on the Special Education and Disability Bill; and re-constituted in 2004 to respond to the current draft Order in Council. The Children’s Law Centre have therefore been consulted upon and contributed to the Equality Commission’s initial response to the consultation document in January 2003 and the Equality Commission’s current response to draft SENDO legislation, submitted by Mr Don Leeson, Disability Policy Manager.

1.5 In early February 2003, the Children’s Law Centre submitted a detailed response to the proposals contained within the Special Educational Needs and Disability Bill Consultation Document. The Children’s Law Centre maintains its position on all the issues raised in our original consultation response, many of which have not been addressed in the draft Order in Council. The original consultation response is attached as ‘Appendix One’ to this response for general information and reference.

1.6 In light of previous delays to the timetable for introduction of new legislation in this area in Northern Ireland, largely due to the suspension of devolved government in Northern Ireland in October 2002, the Children’s Law Centre welcomes the circulation of the draft Order in Council and the opportunity facilitated by Department of Education for further public consultation in relation to the proposed legislation.

1.7 Our response to the draft Order in Council will be particularly focused in relation to the effectiveness of the draft legislation in ensuring that children and young people with special educational needs and/or disability have equality of access to suitable educational provision and are not treated less favourably than any child without a disability; that they are afforded a right of appeal to the relevant appeal processes; and that children and young people’s rights in education contained within Article 2, Protocol 1 of the European Convention and the United Nations Conventions on the Rights of the Child are always ensured. We shall also propose some additional amendments to the draft Order in Council for consideration by the Department of Education, with the aim of enhancing and protecting the rights of children and young people with special educational needs under the assessment and statementing process.


1.8 Concluding Observations of the United Nations Committee on the Rights of the Child

1.9 On 4th October 2002, The United Nations Committee on the Rights of the Child published a detailed report of its concluding observations, following consideration of the Governments report to the Committee regarding its compliance with the rights contained within the Convention in the United Kingdom of Great Britain and Northern Ireland.

1.10 In its introductory comments contained within paragraph 45 of the report, the Committee raises some concerns regarding education in the United Kingdom, which it perceives to be impacting upon children with disabilities. These include high rates of temporary and permanent exclusions from school and ‘sharp differences in outcomes’ for children. The Committee also raised concern that children who are detained within the youth justice system do not enjoy adequate support for their special educational needs.

1.11 Contained within paragraph 46 of this report, are the Committee’s concluding observations to the State in relation to education. Although the Committee do not make specific reference to children with special educational needs and/or disability, two of the recommendations are relevant to equality of access to education for all children, as follows:

a) ensure that legislation throughout the State party reflects Article 12 and respects children’s rights to express their views and have them given due weight in all matters concerning their education, including school discipline;

b) undertake all necessary measures to remove all inequalities in educational achievement and in exclusion rates between children from different groups and to guarantee all children an appropriate quality education.

1.12 Furthermore, Article 23 of the United Nations Convention on the Rights of the Child places a duty on the United Kingdom Government to ensure that all children with a disability ‘should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance, and facilitate the child’s active participation in the community’. The text of this article stipulates that it is designed ‘to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreational opportunities in a manner conducive to the child’s achieving the fullest possible social integration and individual development..’.

The Department of Education and the Department of Employment and Learning should ensure that the new legislation proposed is fully compliant with the principles contained within Article 23 of the UNCRC. We would recommend that the UNCRC be specifically referenced in SENDO.


1.13 The voice of the child

1.14 Article 12 of the UNCRC requires the United Kingdom Government to assure to the child who is capable of forming his or her own views the right to express those views freely, to have those views taken into account and be given due weight in accordance with the age and ability of the child in all matters concerning them. Article 12 also states that the child shall be afforded the opportunity to be heard in any judicial and administrative proceedings affecting him, either directly, or through a representative or an appropriate body. This Article should therefore have a strong bearing on the child’s right to participation in procedures for special educational needs assessment, decision making regarding children’s special educational needs and provision and any appeals in relation to individual educational provision made.

1.15 Also, with the establishment of the OFMDFM’s Children’s and Young People’s Strategy, we can expect a multi-departmental commitment by Government to ensure that the human rights standards contained within the United Nations Convention for the Rights of the Child are observed in public policy affecting children and young people in Northern Ireland.

1.16 The Children’s Law Centre recommends that the Department of Education and the Department of Employment and Learning ensure that the new SENDO legislation and supporting guidance contained within the accompanying Codes of Practice are reflective of the Government’s commitment, as a signatory to the UNCRC, to assure children’s participation in decisions affecting their education.


2.0 Consultation duties under S.75 the Northern Ireland Act 1998

2.1 The previous consultation document, which was issued in September 2002, contained an Equality Impact Assessment pre-consultation questionnaire. In the Explanatory Memorandum to the draft Order in Council, it is stated at paragraph 17, that eighty responses were received by the Department of Education in respect of the consultation document and that none of them indicated that there was likely to be any adverse impact on equality of opportunity for any of the groups under S.75 of the Northern Ireland Act 1998. It is apparent from this statement that it is not the intention of the relevant government departments to conduct an Equality Impact Assessment in respect of the draft Order in Council.

2.2 In order to comply with the requirements of S.75 of the Northern Ireland Act 1998, the Children’s Law Centre recommends that the draft Order in Council should be produced in a child-friendly (plain English) format to allow for consultation with children and young people, who are one of the S.75 groups most likely to be affected by the proposals contained within the draft Order in Council. We would further recommend direct consultation with people who have a disability in Northern Ireland. Leaflets should be made available in different formats to include languages other than English, audio format and Braille. We would further suggest that the consultation period be extended for a reasonable period of time to allow for direct consultation with children and young people and also people with a disability to take place.

2.3 Furthermore, it would appear from examination of the draft Order in Council issued for consultation, that the relevant Departments have not taken proper consideration of the responses received from public consultees in January 2003, when producing the draft legislation proposed. Accordingly, the Children’s Law Centre would support the Equality Commission in their recommendation that an Equality Impact Assessment should also be carried out in respect of the draft provisions of SENDO, taking account of the suggestions made by consultees in response to the 2002 consultation document and identifying any shortcomings in the legislation proposed.


2.4 Plans for Implementation of SENDO

2.5 The Special Educational Needs and Disability Act was enacted in Great Britain in May 2001, with phased implementation over the period from 2002 – 2005. It is planned that SENDO will be enacted in Northern Ireland from September 2005. Given that Northern Ireland will already be a full three years behind Great Britain in the enactment of legislation, we would strongly support the Equality Commission in their recommendation that this legislation be implemented with full effect from September 1995 and should not be phased-in.

2.6 Training - In preparation for implementation of the new legislation, it is imperative that information materials are published, that training needs are identified and training programmes are initiated in advance by the Department of Education and Department of Employment and Learning to ensure that all key stakeholders are aware of the content of the new legislation and the new statutory duties to be placed on schools, colleges and other education providers. Disability awareness training, disability discrimination and new SEN procedures should be prioritised for inclusion in Board CASS programmes for continuing professional development for teachers and should also be incorporated into the curriculum for initial teacher training.

2.7 Resources – If the government aims by this legislation to strengthen and promote the rights of pupils with disability and special educational needs and their inclusion in mainstream education, then there must also be the financial commitment to invest significant capital in building improvements to increase accessibility and to resource the provision of necessary equipment, specialist learning support staff and professionals to successfully integrate and maintain these pupils in mainstream education.


3.0 Children’s Law Centre response to provisions contained within the Draft Special Educational Needs and Disability Order

3.1 Please note that the Children’s Law Centre does not require this response to be treated as confidential. Accordingly, we provide our consent for the response to be published in full on the Departmental website.

3.2 PART 2 – SPECIAL EDUCATIONAL NEEDS (Articles 3 -12) – Part 2 of the proposed legislation refers to special educational needs and proposes some amendments to existing legislation contained within the Education (NI) Order 1996.

3.3 Article 3 – Duty to educate children with special educational needs in ordinary schools - supported

• The Children’s Law Centre strongly supports the proposed amendment in the removal of the previous requirement under Article 7(2)(b)(iii) of the 1996 Order that a mainstream placement had to be compatible with the ‘efficient use of resources’.

• We note from the proposal that the wishes of the parent are required to be taken account but that there is no similar statutory requirement to take into account the views of the child. To ensure compatibility of new legislation with Article 12 UNCRC, we would recommend that proposed legislation be amended to ensure that the requirement to ascertain the child’s views and to give them due weight when deciding upon the suitability of a mainstream school placement is also placed on a statutory footing.

• We refer to the proposal to retain within the Board’s criteria for mainstream education under Article 7 ‘the efficient education of other children’. We then refer you to CLC’s response to Question 6 in the previous consultation document at paragraph 3.12 (pages 13-15), which may be summarised as follows:

• CLC would argue from a human rights perspective that all of the criteria within Article 7 should be repealed.
• All parents of a child with special educational needs should have the right to have their child educated in mainstream school, if that is their preference and the preference of the child.
• The onus is on the Board to resource suitable provision so that the child with SEN and the other children with whom the child is educated receive an effective education.
• Article 23 (UNCRC) promotes social integration inclusion and active participation of children with disability in education.
• With reference to the Board of Governors’ duty to a child with SEN in an ordinary school, we further recommended that Article 8(2) of the Education (NI) Order be amended to remove ‘the efficient use of resources’ criterion included in Article 8(2)(c).

• Given that there is an ongoing Department of Education consultation on suspensions and expulsions from school currently underway, it is very important that clear statutory regulations and guidance are issued for ELB’s, principals and Boards of Governors in respect of the procedures for dealing with children with statements of special educational needs and also those at stages 1-4 the Code of Practice who are causing disruption to other pupils. It is imperative that adequate safeguards are put in place to ensure that such children are not suspended or expelled from school in circumstances where alternative educational support may be provided by the school or by the local ELB to maintain the child in a mainstream school, thereby ensuring the efficient education of other children. It is our view that all educational alternatives should be exhausted before a child with special educational needs is considered for transfer from a mainstream school. Furthermore, children with SEN should never be ‘expelled’ from school.

3.4 Articles 4 & 5 – Advice, information and conciliation services – strongly supported

• With respect to these proposals, CLC reiterates its replies to Question 1 of the previous consultation document. (See pages 6-8, paragraphs 3.3 & 3.4).

• Information - In relation to the publication of information materials, CLC has recommended that the Department of Education (or its agents) should publish child-friendly information materials, as well as parental information materials, in a variety of formats, to ensure compliance with Article 17(UNCRC)(the right to access to appropriate information and materials).

• Dispute resolution – CLC strongly supports the proposal to fund an independent body to provide a conciliation service to parents on issues regarding their child’s SEN. We have some additional recommendations in respect of the service proposed, as follows:
• In accordance with Article 12 (UNCRC), the service should be accessible to children with SEN as well as their parents. The child’s voice should be heard and his or her views taken into account in all cases where they wish to participate in the conciliation process.
• The service should deal with disputes regarding SEN provision to children on stages 1-4 of the Code of Practice as well as children with statements.
• The service should run concurrently with and not compromise or delay a parent’s right of appeal to the SENT.
• The service requires sufficient resources to ensure that all children’s and parent’s needs are met.
• The parent or child may choose not to engage with the conciliation service.
• Moreover, we would agree with the Equality Commission’s recommendation that this service should be provided free by a ‘not for profit’ organisation to minimise the risk of parents or children being pressurised into settlements and to ensure equality of access to the service for those who may be financially challenged.

3.5 Article 6 – Compliance with orders of the SENT – supported

• While CLC welcomes the introduction of a statutory requirement to comply with an order of the SENT within a prescribed period, we feel that the legislation should go further in imposing a strict time limit for compliance with its directions.

• Furthermore, in paragraph 4.13 of CLC’s previous response to the consultation document we recommended that the tribunal’s remit be extended by statute to include powers of enforcement and appropriate sanctions for non-compliance with SENT directions. Currently, parents may seek legal redress by way of judicial review proceedings which are costly to the Board in defending and to the public purse, where legal aid is sought. If the SENT had powers to enforce its own orders this may save the need for expensive court proceedings by parents to ensure that schools and Boards meet the directions of the SENT.

3.6 Article 7 – Appeal against content of statement – supported

• From our reading of the new legislative proposals, it would appear that the grounds of appeal are set out more clearly and now include a specific right of appeal against the school named in Part 4 of the statement. (Previously, this was not specified in Article 18(1) of the 1996 Order although it was exercised as a parental right of appeal in the practice of the SENT).

• We further recommend that the draft legislation should be amended to allow children as rights bearers a separate right of appeal to the SENT. Neither the Education (NI) Order 1996 nor the draft SENDO make any reference to the participation of the child with SEN in tribunal hearings. CLC set out recommendations for participation of children in SENT proceedings in our response to the consultation document. (See pages 22-24, paragraph 4.8)

• We also recommend that a statutory time limit be introduced between the date of request for an appeal and the date of hearing.

3.7 Article 8 – Unopposed appeals – supported

• CLC generally supports the proposal that Boards may concede certain types of appeal, notify the tribunal and that the appeal will then be determined in favour of the appellant. In such circumstances, the Board shall be required to meet the request within a prescribed period to be set out in regulations. We note that this procedure will only apply in circumstances where there is an appeal against the Board’s decision not to make a statement; not to reassess; or not to change the name of the school in Part 4 of the statement in accordance with the parent’s request. Appeals against the content of the statement and those against a decision to cease to maintain a statement cannot be discharged under the same procedures as they may require careful consideration of the child’s needs and SEN provision by the tribunal at hearing.

• We would recommend that time limits for compliance by the Board and/or school upon determination of an appeal should be contained within the new legislation. We would also recommend that there be some legal redress for the appellant in circumstances where the time limits are not complied with by the Board and/or school. The remit of the tribunal would have to be extended to allow powers of enforcement in such cases.

3.8 Article 9 – Duty to inform parents where special educational provision is made – strongly supported

• The Children’s Law Centre strongly supports the introduction of a new statutory duty upon the Board of Governors of the school to inform parents of any special educational needs provision being made for their child. CLC views good communication between schools and parents regarding the identification and assessment of special educational needs as paramount to ensure parents satisfaction that procedures are properly being followed, to avoid unnecessary parental anxiety and to help demystify the assessment process. It is important that a partnership approach between parents and school is nurtured from the earliest stage of intervention so that the best provision may be made available to the child.

• We would further recommend that best practice guidance be issued to schools advising staff on how best to inform parents of their child’s special educational needs and to provide appropriate support structures within the school to enable parents to liaise with staff about their child’s education. In addition, guidance may be helpful to assist school staff and parents in explaining the need for special educational provision to a child.

3.9 Article 10 – Schools will have the right to ask the Board to carry out a statutory assessment – strongly supported

• The Children’s Law Centre welcomes the extension of this statutory right to include Boards of Governors of grant aided schools and proprietors of independent schools as well as parents of children with special educational needs.

• With reference to CLC’s response to Question 4 of the previous consultation document, (See paragraph 3.7, pages 9 & 10), we raised concerns that parents are not currently afforded a statutory right of appeal to the SENT, in circumstances where the school, rather that the parents, requested a statutory assessment from the Board. We therefore welcome the proposed legislative amendment at Section 20A(8)(b), which confirms that parents will have a statutory right of appeal to the SENT in such circumstances. We would further recommend that this new statutory right be extended to afford the child as well as his or her parents a separate right of appeal to the SENT.

• CLC would have further recommendations in respect of the incorporation of statutory time limits within new legislation as follows:

1) Notice to the parents, before deciding whether the Board shall comply with the request for a statutory assessment – CLC welcomes the introduction of a new statutory duty under Section 20A(3) to notify parents of the request for a statutory assessment by a school and the parents right to make representations to the Board. CLC would further recommend that a time limit of 14 days be introduced for the Board to give written notification to parents. This time limit should run from the date of receipt of the request for a statutory assessment by the Board.

2) Where the Board decides not to conduct a statutory assessment of a child – In Northern Ireland, there is no legislative time limit determining how soon this notice should be served, in circumstances where the Board decides not to assess a child. Section 20A(8)(a) refers to the Boards duty to give such notice to parents and the school, but does not introduce any time limit to the process. The Code of Practice recommends that the Board should notify the parents of a negative pronouncement, within six weeks. In England and Wales, the Local Education Authority (LEA) is legally obliged to inform the parents of their decision within six weeks of the date of request for assessment. Also, where the Board decides not to proceed with a statutory assessment, it must notify the parents in writing of their right of appeal against the decision to the SENT. Accordingly, CLC recommends that legislation be amended to require the Board to notify parents within six weeks of a negative pronouncement to any request for a statutory assessment, whether the original request is by the parents or by the school.

3) Where the Board has conducted a statutory assessment but decides not to issue a statement- There is no time limit placed on the Board to notify parents of a decision not to issue a statement. The Code of Practice recommends that parents should be informed immediately, in circumstances where the Board is able to decide that a statement is not necessary. In England and Wales, regulations require the LEA to decide within two weeks of completion of assessment whether a statement is necessary . Accordingly, CLC recommends that a similar time limit be introduced in the new SENDO legislation, both in circumstances where the original request for assessment is made by the parents or by the school.

4) Where the Board intends to issue a statement for the child, time limit for issue of a draft statement - a statutory time limit of 18 weeks currently applies for service of a draft statement on parents, following their request for a statutory assessment of their child. CLC recommends that the same time limit of 18 weeks should apply for service of a draft statement to parents and school, following the schools request for a statutory assessment. CLC recommends that Section 20A should be amended to include this time limit.

5) Time limit for issue of a final statement – CLC recommends that a statutory time limit of 8 weeks should be introduced under the new legislation for finalisation of a statement. The time limit should run from the date of issue of the draft statement. The Code of Practice currently recommends that the process be finalised within this timescale, however, we feel that it needs to be placed on a statutory footing to ensure full compliance by the Board.

3.10 Article 11 – Duty to specify named school in statement – strongly supported

• CLC strongly supports this proposal. CLC would recommend as a cautionary measure that if, for example, a parents arrangements for a private school placement fall through, the Board should assist parents in finding a suitable placement for the child without delay and ensure that suitable arrangements are made for the child’s continuing education until a suitable school placement is available. Also, if parents decide to make educational provision for their child at home, the Board have a role in assessing the education provided to ensure that the child is receiving “efficient full time education suitable to his age, ability and aptitude and to any special needs he may have” . Also, once parents have satisfied the Board that the education to be provided is ‘suitable’, the Board should monitor the situation every 12 months to ensure that the education is continuing to meet the child’s needs.

3.11 Article 12 – Substitution of new Schedule 1 for Schedule 2 of the Education Order – ‘Making and Maintenance of Statements under Article 16’ - supported

CLC generally supports the introduction of the redrafted Schedule, which is somewhat clearer in respect of procedures to be followed. We also recommend the following amendments to the proposed new schedule:

• Parental preference as to school – With reference to Article 5(3) of the new schedule, we note that there are some conditions attached to the Board’s naming of a grant-aided school in the statement. The schedule states that the Board will specify the school of preference unless-

(a) the school is unsuitable to the child’s age, ability or aptitude or to his special educational needs, or
(b) the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources.

Given the proposed legislative amendments to Article 7 of the 1996 Order under Article 3 of the draft SENDO (in relation to the Board’s duty to educate children with special educational needs in ordinary schools) we would recommend that the criteria within this section should also be amended. We would recommend the removal of subsection (b).

• Service of a statement or amended statement and notice of right of appeal - With reference to Article 9 of the new schedule, we note that the requirement upon the Board to serve the parents with ‘the name of the person to whom he may apply for information and advice about the child’s special educational needs’, which was contained within in Article 6(b) of the old Schedule 2 (1996 Order), has been removed.

• Article 9(3) of the new schedule states that the written notice to parents ‘must contain such other information as may be prescribed’. We would request clarification of the other information to be given and would recommend that a contact within the Board still be provided to parents to allow them easier access to the appeal process.

• Change of named school – We refer to Article 11(2) of the new schedule and have the same concerns as above in relation to parental preference as to school. Given the proposed legislative amendments to Article 7 of the 1996 Order under Article 3 of the draft SENDO (in relation to the Board’s duty to educate children with special educational needs in ordinary schools) we would recommend that the criteria within this section should also be amended. We would recommend the removal of subsection (b).

• We would have two further comments to make in respect of Article 11of the new schedule, having considered the previous procedures under Article 8 of the old Schedule 2 (1996 Order) as follows:

1) the Board’s duty to consult with the Board of Governors of the proposed school, or if the school is within another Board area, that Board, has been removed. We recommend that the Board should still be required to consult before making any decision in this matter and the wording contained within Article 8(2)(3) be included in the new schedule.

2) In circumstances where the Board decides not to comply with the request for a change of named school, the new schedule removes the requirement upon the Board to give reasons in writing to parents for its decision. We would recommend that the wording of Article 11(3)(a) be amended requiring the Board to give notice of the decision and the reasons for the decision. This will assist parents in deciding whether to exercise their right of appeal to the Tribunal.

• Procedure for ceasing to maintain a statement – CLC strongly supports the new statutory requirement contained within Article 12(6) of the proposed schedule that the Board must maintain a child’s statement until the outcome of an appeal to the Tribunal is known.

• With reference to the Children’s Law Centre’s response to the previous consultation document (see paragraph 3.10, page 11-12), we then endorsed IPSEA’s recommendation that this proposal be extended to maintain existing provision pending an appeal in the following additional circumstances:

a) where the Board proposes to amend a statement and change the description in Part 2 of the child’s special educational needs;
b) where the Board proposes to amend a statement and change the description in Part 3 of the special educational provision the child is to receive;
c) where the Board proposes to amend a statement and change the school named in Part 4 of the statement; and
d) where the Board proposes to amend a statement and no school is named in Part 4 of the statement.

The Children’s Law Centre maintains its position as stated.

• We also made a recommendation that where children were due to transfer from nursery school to primary school or from primary to secondary education, that there was a need for Boards to finalise statements as early as possible in the year preceding transfer. We recommended that a time limit be imposed upon the Board for finalisation of statements by the end of February, so that parents were afforded the opportunity to appeal to the tribunal prior to commencement of the new school year. Such a time limit should be included in the new SENDO legislation.


3.12 Issues regarding special educational provision that have been omitted from the consultation document and the draft SENDO legislation

• In the Children’s Law Centre’s response to the consultation document we set out a number of key issues and concerns that had not been addressed in the consultation document. (See pages 17-29, paragraphs 4.0-4.13 of our original response). We do not propose to reiterate the full content of our previous response in this document, but we should highlight that many of these issues remain outstanding and have not been addressed in the draft SENDO legislation. We would request that the Department of Education reconsider the concerns raised and, where possible, address them in the new SENDO legislation and supporting guidance.

• Key areas for review raised in CLC’s response to the consultation document may be listed as follows:

1) Amendment of Article 8 of the 1996 Order to clarify the Board of Governors’ obligation to secure suitable provision for children with special educational needs in schools.
2) Removal of ‘the efficient use of resources’ qualification currently applied to school-based provision for children without statements (Article 8(2) 1996 Order).
3) Funding and allocation of budgets in mainstream schools for non-statemented children.
4) Amendment of Article 9(5) of the 1996 Order to specify information required from Boards of Governors on funding allocated to special educational provision for individual children at a school on an annual basis.
5) Introduction of a statutory obligation on the Board to monitor school-based provision effectively.
6) Formal mechanisms of parental/pupil redress when school based provision is unsatisfactory. For example, new duties could be introduced requiring the Board to adjudicate upon the suitability of school-based provision and to direct schools to make suitable provision from the school budget.
7) Criteria for ‘exceptional provision’ to meet the needs of children with special educational needs under Article 86 of the Education (NI) Order 1998.
8) Review of time limits applicable to the special educational needs assessment and statementing process.
9) The child’s right of appeal and participation in tribunal proceedings.
10) Availability of independent experts for parents.
11) Availability of relevant financial information from the school/Board in circumstances where educational provision is turned down for children who are not statemented, due to a lack of resources.
12) The need to quantify provision to be made for an individual child in statements.
13) Development of joint DHSSPS and Department of Education strategies to counter the lack of speech and language therapy provision/providers to meet demand in Northern Ireland. CLC would recommend clear definition of the statutory obligations of the Education and Library Board and the HSSB/Trust to make provision for children with special educational needs.


4.0 CHAPTER 1 OF PART 3 – DISABILITY DISCRIMINATION IN SCHOOLS (Articles 13-26)

4.1 Article 14 – Discrimination against pupils and prospective pupils – strongly supported

• The Children’s Law Centre strongly supports this Article as it aims to prohibit all schools from discriminating against pupils and future pupils with a disability in respect of their admission applications and arrangements, educational provision and suspensions and expulsions from school.

4.2 Article 15 – Meaning of Discrimination – A school must not treat pupils who have a disability less favourably, without justification, for a reason related to their disability – defences opposed

• The definition of disability is taken directly from Section 5 of the Disability Discrimination Act 1995. Although not all disabled children will have special educational needs or learning difficulties, many children with special educational needs will satisfy the statutory definition of disability and shall therefore benefit from the additional protection under this legislation. While the Children’s Law Centre generally supports this proposal, we have some key concerns in relation to the defences, which may be relied upon to justify a school’s actions under the draft legislation.

• What type of discrimination is justifiable in schools? - The legislation provides schools with two broad defences in relation to their duty not to discriminate:

(1) A school may still discriminate against a pupil or prospective pupil if it is considered justified;

(2) If at the time the school or responsible body did not know, and could not reasonably be expected to know, that the child was disabled, then the school does not discriminate against the child.

• Article 15(6) of the draft legislation provides that less favourable treatment may be justified in circumstances where secondary or grammar school admissions criteria have been applied in accordance with Article 16 (1) of the Education (NI) Order 1997, or where independent schools wish to select by reference to general or specific ability or aptitude. The Children’s Law Centre agrees with the Equality Commission in it’s submission that this new legislation should have an impact on schools admissions criteria for transfer into secondary schools. Children with disabilities should be afforded protected from potentially discriminatory admissions criteria, for example, school attendance records, attendance at a particular feeder primary school or achievements in extra-curricular activities that may have not been easily accessible for a child with a disability. Accordingly, CLC recommends that such exemptions be removed from the draft legislation.

• Article 15(7) provides a general defence of justification for less favourable treatment or failure to make reasonable adjustments (as required under Article 16 of SENDO) if the reason for it is ‘both material to the circumstances of the case and substantial’.

• In England, since the introduction of SENDA, the scope of the justification defence for schools has been interpreted in the same way in respect of claims of less favourable treatment and failure to make reasonable adjustments. Therefore, a decision whether the actions of the responsible body were justified will often turn upon evidence of whether reasonable steps were taken by the school to prevent disadvantage to the pupil. How the tribunal or the courts in Northern Ireland will interpret this defence is very difficult to anticipate given the generality of the wording. We would recommend that there should be clear guidance in relation to the scope of the justification defence in the Code of Practice for schools to accompany this legislation.

• The Explanatory Memorandum to the draft Order indicates that for parents to bring proceedings against a school for less favourable treatment on the grounds of disability or failure to make reasonable adjustments, they must show not only that the general duty is breached but also that the breach has caused detriment to their child. The duty owed to employees under Section 6 of the Disability Discrimination Act 1995 may be distinguished on the basis that there is no requirement to show detriment to the individual. The complainant is only required to establish that a breach of duty has occurred. There is no reason given in the Explanatory Memorandum as to why the law should apply differently to schools. The Children’s Law Centre requests clarification of the reasons for this distinction in the draft legislation.

• The relationship between disclosure and protection from disability discrimination – Article 15(3) provides that a responsible body does not discriminate against a person where it can show that it did not know and could not reasonably have been expected to know that the person was disabled. This article poses a difficult question in relation to the duty to disclose a pupil’s disability to protect from discrimination and the conflicting duty to respect a pupil’s right to privacy regarding their disability. (Article 8 ECHR).

• The anticipatory nature of the requirement to make reasonable adjustments means that schools must ensure that provision of education and associated services is non-discriminatory to prospective pupils as well as existing pupils. Schools will be, as such, required to make reasonable adjustments without knowledge of an individual pupil’s disability. The Children’s Law Centre supports the Equality Commission in their recommendation that that the onus should be on the school to anticipate the needs of disabled pupils and to create an environment where people feel secure in disclosing their disability.

• There may be circumstances where a child and/or parents are not aware of the disability; have not yet received a clear diagnosis; do not accept the disability; or the child may not require special educational provision or reasonable adjustments but does expect to be afforded protection from discrimination. In any of these circumstances, the failure to disclose a disability may affect the child’s statutory rights under the proposed legislation.

• The Children’s Law Centre accepts that it may be reasonable, in circumstances where the child has no obvious disability that some disclosure is necessary for a pupil to benefit from the protection afforded under SENDO. However, a school should only be able to rely on this defence, if the school could not reasonably have been expected to know that the child had a disability. This would place the onus back on the responsible body to ensure that staff are properly trained in special educational needs and disability awareness and that procedures are in place to identify and assess a pupil’s individual needs. The school should be expected to act as any reasonable professional body in such circumstances. This would fall into line with the approach of the English Courts in educational negligence actions regarding the legal duty of care owed by schools to children with special educational needs, such as the House of Lords judgement in Phelps . We recommend that the draft legislation should be amended to this effect.

• The Code of Practice for schools should provide practical guidance to school staff on how they shall be expected to discharge their duties. The Children’s Law Centre recommends that the legislation be amended to place a statutory duty on the responsible body to have regard to the Code of Practice.

4.3 Article 16 – Schools duty to make reasonable adjustments – exceptions opposed

• CLC supports this proposal on the basis that it places a new duty on schools to take reasonable steps to ensure that pupil’s with a disability are not placed at a substantial disadvantage to other pupils without a disability. However, we would have the same concerns as voiced above in respect of the duty on pupils and parents to disclose the pupil’s disability to the school. Furthermore, we strongly oppose the exceptions built in to draft legislation.

• CLC particularly welcomes the provision in Article 16(7) for a ‘confidentiality request’. This means that where a pupil or parent chooses to disclose a disability but asks the school to treat the disclosure with confidentiality, the nature of the reasonable adjustments may be subject to modification and agreement, in order to respect a child’s confidentiality.

• The extent of the duty under Article 16 is limited by two main exceptions:

(1) Schools are not required to provide auxiliary aids or services (on the basis that these are already provided under special educational needs legislation (Education (NI) Order 1996)); and

(2) Schools are not required to remove or alter the physical features of premises.

CLC strongly opposes the exception of a duty to provide auxiliary services for the following reasons:

a) There are currently many gaps within procedures and legislation governing special educational provision in Northern Ireland. Many children are denied access to provision or experience extreme delays in assessment and finalisation of statements and the educational provision contained therein.

b) Different Education and Library Boards have separate internal policies in relation to special educational provision.

c) CLC views the introduction of new SENDO legislation as a valuable opportunity to tighten up procedures and eradicate unreasonable delay in provision for children with special educational needs and disability within the education system.

d) Some auxiliary aids and services could be provided without the need to go through the assessment and statementing process. CLC recommends that the Department of Education consider this option before finalising the legislation.

e) Children in private schools will be afforded greater protection under the Disability Discrimination Act 1995 than pupils in grant aided schools.

f) If provision of auxiliary aids and services were to be included under disability discrimination legislation, the role of the Equality Commission should be extended to advise and represent children and their parent’s interests to the tribunal.

• It is understood that the reason for the second exception is due to the Government’s plan for a staged process, where schools are first required to prepare accessibility strategies and plans to increase access to the curriculum and to school premises, and that a timescale for implementation of such plans is yet to be defined. The difficulty is that the draft legislation will only provide limited relief for children who cannot access the school of their choice or the curriculum of their choice due to their disability.


4.4 Articles 17 & 18– Accessibility strategies of Boards and schools – supported

• The Children’s Law Centre welcomes the new statutory requirements upon Boards and schools to prepare strategies and plan for increased curriculum access; physical accessibility of school premises; and publication of information materials for pupils with disability. We have concerns, however, due to the omission of clear timescales, regulatory procedures and funding arrangements under the proposed legislation.

• Given that we are three years behind Great Britain in enactment of this legislation and proposals have already been made to bring in all of the new statutory duties at once, rather than initiate a three-year phasing in process, CLC would recommend that a timescale for consultation, finalisation and publication of plans and completion of physical adjustments to school premises should be clearly set out in SENDO legislation and the Code of Practice accompanying the legislation. Also, the Department of Education and schools should be required under SENDO legislation to have due regard to any procedures set out in the Code.

• Our key concerns may be summarised as follows:

1) There are no time limits indicated in the draft legislation;
2) There is no clear process for public consultation (including consultation with children and young people) in respect of the drawing up of strategies and plans for accessibility by Boards and schools;
3) There should be a clear duty upon all Boards and schools to publish their strategies and plans to parents of registered pupils and parents of prospective pupils at the school;
4) There are no building standards indicated in respect of the physical accessibility works to be completed;
5) There is no indication that there will be a process of regulation by building experts, architects or surveyors of all plans submitted by Boards and schools – The normal ETI inspection procedures for schools will not satisfactory in this regard;
6) There is no indication of the content of Departmental guidance for the Boards in the Explanatory Memorandum for draft legislation;
7) There should be a clear process for approval and quality assurance of plans;
8) Plans should include access to extra-curricular activities after normal school hours;
9) The Department of Education should be responsible for setting up a formal complaints process in relation to the plans published by Boards and schools and also where time scales for finalisation of planning or accessibility arrangements are not met;
10) Funding arrangements for improvements in all grant-aided schools should be detailed in clear Departmental guidance. The Explanatory Memorandum states that schools will be required to allocate adequate resources to implement their plans. The Department of Education should be required to monitor and approve funding decisions made by schools to ensure that plans can be met;
11) Arrangements for review of plans also require clarification;
12) Additional staffing resources will be needed in schools to manage accessibility to the full curriculum for disabled pupils. This should be factored in to funding arrangements;
13) Clear guidance will be needed from the Department of Education in relation to the development of information materials for disabled pupils. Materials should be produced in a child-friendly format and in audio and Braille formats. If schools are required to develop their own information materials then adequate resources will need to be made available to schools;
14) Staff training should also be factored in to funding arrangements and training should be sufficient to address need.

4.5 Article 19 – Duty of Boards not to discriminate – strongly supported

• The Children’s Law Centre strongly supports this proposal.

4.6 Articles 21 & 22 – Extension of the remit and powers of the Special Educational Needs Tribunal - supported

• The Children’s Law Centre supports the proposals to extend the tribunal’s remit to cover complaints in relation to the school’s new duties not to discriminate against disabled pupils or prospective pupils at a school. The Tribunal could potentially hear a complaint in respect of special educational needs provision and disability discrimination at the same time. CLC agrees that the reconstituted SENDIST will be the appropriate forum to hear disability discrimination and special educational needs appeals.

• CLC does, however, have a number of principle concerns in relation to the remit and powers of the proposed SENDIST as follows:

1) Article 22(4)(b) of the proposed SENDO states that the Tribunal shall have no power to award financial compensation against schools in circumstances were it is established that a school has breached disability discrimination law. Remedies would therefore be restricted to issuing directions upon responsible bodies for schools to ensure an educational remedy for the child. Conversely, it is proposed that disabled students in further and higher education colleges will only have recourse to the County Court, where the only remedy available will be financial compensation, including damages for injury to feeling. The Courts will have limited expertise in disability issues and cannot impose orders on further and higher education colleges, regarding a student’s suitable educational arrangements. CLC recommends that the reconstituted SENDIST would be the appropriate specialist forum to hear appeals against schools and further and higher education colleges. The Tribunal’s powers could quite easily be extended to enable it to make compensatory awards by way of deterrent to a school or college against breaching the new statutory duties, as well as to provide directions on suitable educational provision. The Department of Employment and Learning would naturally have a responsibility in relation to the running of the SENDIST, where this to be the case.

2) The Explanatory Memorandum indicates that the Tribunal may order schools and Boards to take certain actions to counter past discrimination and shape the future prospects of the child. CLC recommends that the types of order which may be made should be clearly set out in statutory regulations for the Tribunal.

3) The Explanatory Memorandum also states that deadlines may be set by the Tribunal for schools and Boards to comply with its directions. CLC recommends that these deadlines be given statutory footing in Tribunal regulations.

4) Article 22(2) of the proposed legislation expressly excludes appeals on expulsion from the Tribunal’s remit. CLC strongly opposes this provision of the draft legislation as we feel that the newly constituted SENDIST will ultimately have the expertise to consider complex issues relating to a child’s special educational needs or provision and/or reasonable adjustments to be made to meet disability requirements. This specialist skill and knowledge base will not be readily available on an Expulsion Appeal Panel constituted by an ELB to hear an appeal against an expulsion from school. CLC recommends that In any case where a child with SEN or a disability is expelled from school, the SENDIST is the appropriate body to hear that appeal. The remit of the SENDIST should be amended by legislation.

5) Furthermore, with reference to the current Department of Education consultation ‘Suspension and Expulsion Procedures – Proposals for Change’, paragraph 6.3 of the consultation document proposes that pupils with statements of special educational needs should not be expelled from school. The Children’s Law Centre strongly supports this proposal and the further recommendation at paragraph 7.16 of the same document that there should be a ‘no expulsions’ policy for children with statements of special educational needs.

6) Article 22(1)(b) of the proposed legislation also stipulates that the right of appeal should be the right of the parents. CLC strongly recommends that the pupil should have a separate right of appeal to the Tribunal and also to be afforded the opportunity to meaningfully participate in any Tribunal appeal process, regarding their education. We recommend that the legislation should be amended to take account of the principles contained within Article 12 of the UNCRC. Appropriate mechanisms need to be put in place, to ensure that children with special educational needs and disability can be heard and resources need to be made available to ensure that children are afforded legal representation.

7) The Equality Commission’s role in the provision of advice and advocacy services must be clearly set out in Departmental guidance and the Codes of Practice accompanying SENDO legislation.

8) We would further recommend that the Department of Education and Department of Employment and Learning should formally consult with the Legal Services Commission in respect of the issue of funding for specialist legal advice and representation at the SENDIST for children and young people and their parents in this new and complex area of law.

9) CLC is hugely concerned by the failure of legislators to provide the Tribunal with any power to enforce it’s orders. We previously raised this concern in February 2003, in our response to the Special Educational Needs and Disability Bill Consultation Document. (See page 29 of CLC response, paragraph 4.13). CLC strongly recommends that the SENDO legislation be amended to address the issue of enforcement. The Department of Education and the Department of Employment and Learning may have a role to play in ensuring that schools and colleges comply fully with the Tribunal’s orders.

10) Given the proposals to extend the Tribunal’s remit, there will be huge implications in relation to training of the panel members and tribunal staff. CLC also recommends, in the interests of children with disabilities, that the SENDIST encourages adults with disability to apply in any future panel recruitment process.

11) Training should also be developed by the Equality Commission and relevant disability related voluntary organisations for parents and others who may wish to advocate on behalf of pupils with special educational needs and disability. Any training provided should include training on children’s rights. There will be a steep learning curve in respect of disability discrimination once the legislation is introduced. CLC recommends that training provision be resourced by the Department of Education and the Department of Employment and Learning.


5.0 CHAPTER 2 OF PART 3 – DISABILITY DISCRIMINATION IN FURTHER AND HIGHER EDUCATION (Articles 27-33)

5.1 Articles 28 & 29 – Discrimination against disabled students and prospective students - opposed

• CLC would have the similar concerns to those previously raised in respect of the limitation of a school’s responsibility to a pupil who had not disclosed their disability. Our response and recommendations to Article 15 would equally apply to further and higher education colleges.

• Adequate funding for learning support aids services must be assured to students who are transferring from schools to further and higher education colleges to continue their education. It is important that, as far as possible, services, specialist equipment and support can be provided without delay to ensure the easiest possible transition for disabled students.

• CLC notes the comment in the Explanatory Memorandum that the Department of Employment of Learning has the power to issue regulations detailing all of the wider educational services covered by the new statutory duties. E.g. accommodation, student services, leisure facilities etc. CLC would recommend prior consultation with students and disability organisations in respect of the content of these regulations.

• CLC also has concerns in relation to the two statutory exemptions to this duty for colleges, which are contained within Article 29(6) and propose to justify less favourable treatment of disabled students on the grounds that ‘it is necessary to maintain academic standards or standards of any other prescribed kind’. We would concur with the recommendations of the Equality Commission that reasonable adjustments might be made to academic criteria for admission to courses by prospective students with disabilities. A system for accreditation of non-academic experience, interviews and other qualifications should be investigated as a possibility to encourage inclusion of people with disabilities who have not been afforded equal access to education in school.


5.2 Article 30 – Colleges to make reasonable adjustments – strongly supported

• CLC supports this proposal on the basis that it places a new duty on colleges to take reasonable steps to ensure that student’s with a disability are not placed at a substantial disadvantage to other pupils without a disability. CLC particularly welcomes the provision in Article 30 for a ‘confidentiality request’. This means that where a student chooses to disclose a disability but asks the college to treat the disclosure with confidentiality, the nature of the reasonable adjustments may be subject to modification and agreement, in order to respect a student’s confidentiality.

• CLC notes that the statutory duty placed on colleges is greater than that upon schools as it is not subject to the same exceptions (provided under Article 16) and a complainant would only have to establish that there had been a breach of the new statutory duty and not that there was detriment to the individual as a result of that breach. CLC fails to see any justification for the differing approach with respect to schools, as indicated in draft SENDO legislation.


5.3 Article 31 – Cases of disability discrimination will be taken in the County Court – strongly opposed

• The Courts will have limited expertise in disability issues and cannot impose orders on further and higher education colleges, regarding a student’s suitable educational arrangements.

• CLC recommends that the reconstituted SENDIST would be the appropriate specialist forum to hear appeals against schools and further and higher education colleges.

• The Tribunal’s powers could quite easily be extended to enable it to make compensatory awards by way of deterrent to a school or college against breaching the new statutory duties, as well as to provide directions on suitable educational provision.

• The Department of Employment and Learning would naturally have a responsibility in relation to the running of the SENDIST, where this to be the case.


6.0 CHAPTER 3 OF PART 3 – MISCELLANEOUS PROVISIONS (Articles 34-37) – Extension of the role of the Equality Commission

6.1 Article 34 and Schedule 4 – Assisting complainants –supported

• CLC supports the Equality Commission’s role as provided in Schedule 4 to the legislation
.

6.2 Article 35 – Codes of Practice – supported

• CLC supports the Equality Commission’s role in preparing and consulting on the two Codes of Practice for schools and colleges. CLC further recommends a wide public consultation, including direct consultation with children and young people, in respect of both Codes of Practice by the Equality Commission.

6.3 Article 36 – Conciliation service –supported

• CLC supports the proposal that the Equality Commission shall be responsible for making arrangements to set up a fully independent and not for profit conciliation service, prior to any tribunal or court proceedings, in order to promote settlement of disability discrimination disputes between either schools and colleges and individuals.

• CLC recommends that clear information on the procedures and processes for conciliation be provided in child-friendly, audio and Braille formats.

• CLC also recommends that the conciliation service provider allows children and young people to participate fully in the conciliation process. Necessary training, specialist staff and equipment for inclusion, must be invested in, as appropriate, to ensure meaningful participation of children with disability in this process.

• Finally, we recommend that any not for profit agency conducting this conciliation service be properly resourced by the Department of Education and the Department of Employment and Learning.



Should you have any queries in relation to this submission please contact Kathryn Stevenson, Solicitor, at the Children’s Law Centre
Tel No: 028 90 245704
Fax No: 028 90 245679
e-mail: kathrynstevenson@childrenslawcentre.org

APPENDIX ONE


RESPONSE BY THE CHILDREN’S LAW CENTRE TO THE PROPOSALS CONTAINED WITHIN THE SPECIAL EDUCATIONAL NEEDS AND DISABILITY BILL CONSULTATION DOCUMENT


1.0 Introduction


1.1 The Children’s Law Centre is an independent non-governmental organisation, which helps children and young people, parents, carers and professional’s work with and understand the law relating to children.

1.2 We carry out the following work:

2) Research on children’s rights
3) Training and seminars on children’s rights and the law relating to children and young people in Northern Ireland
4) Information service
5) We run a youth group called Youth @ clc
6) We operate a legal advice service for members and the public, including a free phone number for young people
7) There is a casework service in accordance with our casework policy
8) Policy work

1.12 Our work involves day-to-day contact with children and young people, their parents/carers and professionals employed by the Education and Library Board’s regarding education issues.

1.13 The Children’s Law Centre largely welcomes the new proposals in the Special Educational Needs and Disability Bill Consultation Document that have been introduced to protect children and young people with disability from discrimination in education and to promote their inclusion, so far as possible, in mainstream education. Our response to the Consultation Document will be in relation to the implications of these new proposals for children and young people with special educational needs and/or disability in education. We shall also propose some additional amendments to the Consultation Document for consideration by the Department of Education, with particular reference to existing special educational needs legislation, the guidance contained within the Code of Practice on the Identification and Assessment of Special Educational Needs, regulations and procedure governing the Special Educational Needs Tribunal (SENT) and the potential for extension of its remit, with the aim of enhancing and protecting the rights of children with special educational needs and/or disability within the education sector.



2.0 Historical Context for new Legislation

2.1 Disability Discrimination Act 1995

The Disability Discrimination Act 1995 was introduced at Westminster on the 2nd December 1996. Part II of the 1995 Act prohibits discrimination on the grounds of disability in the field of employment. The Act makes it unlawful for employers with 20 or more staff to discriminate against current or prospective employees because of a reason relating to their disability in recruitment procedures, promotions and transfers, training and development opportunities and the dismissal process. The Act also places a duty on employers to make ‘reasonable adjustments’ if their employment arrangements or premises substantially disadvantage a disabled employee or a disabled applicant.

2.2 Part III of the 1995 Act introduced new requirements to make goods, facilities and services more accessible to disabled people. From 1st October 2004, the new duties in relation to provision of goods, facilities and services shall come fully into effect in Northern Ireland. There shall be a legal requirement upon service providers to ensure that their premises are accessible for all their customers from this date. A Code of Practice is due to be published by the Equality Commission in 2003. This document will provide guidance for service providers in relation to making ‘reasonable adjustments’ to the physical features of premises to ensure disabled customers may access goods or make use of facilities and services. Anyone who is planning new public service buildings or making alterations to existing premises shall have to take account of this legislation. Furthermore, it is recommended good practice for businesses to adopt an inclusive approach when making physical adjustments to their premises. For example, a separate entrance, payment aisle, counters and toilet facilities may exclude potential disabled customers .

2.3 Part IV of the Disability Discrimination Act 1995 relates to education, however the duties conferred on education providers are restricted in the main part to an information and reporting role. Under Section 19(5) and (6) of the Disability Discrimination Act 1995, anti-discrimination provision in relation to service access for the disabled and the associated duty to make ‘reasonable adjustments’ are specifically excluded in their application to schools or educational institutions that are either publicly funded, funded by a voluntary organisation or privately financed. The reasoning behind this blanket exemption was that there was already legislation in place which afforded some protection of educational rights for children with special education needs (and accordingly, children with disabilities), throughout the United Kingdom.


2.4 Education (NI) Order 1996

In Northern Ireland, existing relevant legislative provision was contained in the Education (NI) Order 1996:

Article 7 provides a qualified duty upon the appropriate Education and Library Board to secure education in an ordinary school for a child with a statement of special educational needs, subject to the following criteria:

‘educating the child in an ordinary school is compatible with –

(i) his receiving the special educational provision which his learning difficulty calls for,
(ii) the provision of efficient education for the children with whom he will be educated, and
(iii) the efficient use of resources’.


In respect of pupils without statements of special educational needs, Article 8 confers a duty upon the Board of Governors of an ordinary school to:

‘use its best endeavours, in exercising its functions in relation to the school, to secure that if any registered pupil has special educational needs the special educational provision which his learning difficulty calls for is made’.

The Board of Governors of ordinary schools are also required to include the following information in their annual reports, concerning registered pupils with special needs for whom a statement is not maintained by the appropriate Education and Library Board:

(a) any special arrangements made for the admission of pupils;
(b) the steps taken to prevent pupils with special educational needs from being treated less favourably than other pupils;
(c) the facilities provided to assist access to the school by pupils with special educational needs.

Both of the above provisions relate to children with special educational needs. It is notable that here are distinct and separate statutory definitions in respect of ‘special educational needs’ and ‘disability’ . Although a large proportion of children with disability may be entitled to receive additional educational support either in the form of school-based provision, or from the appropriate Education and Library Board, provided a statement has been finalised, there may be some children with disability who do not have special educational needs. Such children may require further legal protection to ensure their right to an effective education is maintained.


2.5 Special Educational Needs and Disability Act 2001

The Special Educational Needs and Disability Act (SENDA) was granted Royal Assent on the 11th May 2002 and came into effect in England, Scotland and Wales on the 1st September 2002. SENDA attempts to fill some of the gaps left by the Disability Discrimination Act 1995, which has made very little impact on countering disability discrimination in education. The legislation repeals the exemption afforded under Section 19(5) and (6) of the Disability Discrimination Act 1995 and enacts a new Part IV which introduces new protection for both existing and future pupils/students with disabilities in education. Part IV sets out disability discrimination duties for education providers.

Major new provisions under SENDA aim to ensure that disabled children and young people are not disadvantaged in their access to education and may be summarised as follows:

• Firstly, the Act strengthens the rights of children with special educational needs to be educated in mainstream schools, where parents want inclusion and the interests of other pupils can be protected;

• It places a new duty on the bodies responsible for schools, further education and higher education institutions not to treat disabled pupils/students less favourably, without justification, for a reason which relates to their disability;

• It requires the bodies responsible for schools further education and higher education institutions to make reasonable adjustments so that disabled pupils/students are not put at a substantial disadvantage compared to pupils/students who are not disabled;

• It requires Local Education Authorities, the bodies responsible for schools, further education and higher education institutions to prepare, in writing, a plan to increase the physical accessibility of their premises and the curriculum for disabled pupils/students and prospective disabled pupils/students;

• The remit of the Special Educational Needs Tribunal has also been extended in England, Scotland and Wales, renaming it the Special Educational Needs and Disability Tribunal (SENDIST) and conferring new powers on the panel to hear disability discrimination appeals.

Although this legislation does not apply in Northern Ireland, the Northern Ireland Executive has committed itself to introducing equivalent legislation in Northern Ireland and the publication of the Special Educational Needs and Disability Bill Consultation Document is the first stage of the process in realising this aim. It is noted that all of the main provisions referred to above are duplicated in the proposals contained within the Consultation Document for Northern Ireland.



3.0 Proposals Contained within the Special Educational Needs and Disability Bill Consultation Document (NI)

3.1 The proposed new legislation for Northern Ireland is in three parts as follows:

Part 1 – refers to Special Educational Needs and proposes some amendments to existing legislation contained within the Education (NI) Order 1996.

Part 2 – refers to disability discrimination in schools and proposes some amendments to the Disability Discrimination Act 1995.

Part 3 - refers to disability discrimination in further and higher education institutions and proposes some amendments to the Disability Discrimination Act 1995.


3.2 Proposals for Special Educational Needs in Schools

(1) Advice and Information (paragraph 2.2.1) – it is proposed that all boards will be required to make arrangements for providing information on SEN matters to parents with SEN in their area.

(2) Conciliation arrangements (paragraph 2.2.2) – it is proposed that conciliation arrangements should be available, independent of the Board.

Question 1: Do you see any practical difficulties with the proposals on advice services and conciliation?



3.3 Advice and Information

The Children’s Law Centre welcomes any proposal to make information on the procedures for assessment and statementing of children with special educational needs available to parents.

The legislation and guidance contained within the Code of Practice on the Identification and Assessment of Special Educational Needs is very lengthy, detailed and complicated and is simply not accessible to many parents in its current format.

Many of the parents who contact the Children’s Law Centre for advice are not familiar with the legislation or guidance in this area.

The Department of Education previously published a very useful guide for parents which has been an invaluable tool for advisers at the Children’s Law Centre in keeping parents informed of the principle responsibilities of Boards of Governors of schools and the Education and Library Boards towards children with special educational needs and the procedures for assessment and statementing. We understand that this guide is now out of print and we would recommend that the Boards arrange for a similar publication to be made available to parents following the introduction of new legislation in this area.

In England, DfES published a revised Code of Practice in January 2002. One of the new provisions in the Code is that all Local Education Authorities (LEA’s) must make arrangements for Parent Partner Services to provide information, advice and guidance to parents. LEA’s are not required to provide the service themselves. They may sub-contract the service to another provider. LEA’s are also required to publicise the service to parents, head teachers, schools and other parties they consider appropriate.

The Children’s Law Centre recommend that information should be published by the Boards (or their agents) in a format that is accessible to children. Failure to provide relevant information resources in an accessible format may constitute a breach of Article 17 of the United Nations Convention on the Rights of the Child. (The right to access to appropriate information and materials, particularly, ‘those aimed at the promotion of his or her social, spiritual and moral well being and physical and mental health’).

It is essential that children be provided with such information to ensure their meaningful participation in any decisions regarding their education. Provision of such information would be therefore be in keeping with the State’s duties under Article 12 of the United Nations Convention on the Rights of the Child to ‘assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child’.

Information should be made available in various formats to meet the needs of children of primary and secondary school age and also children who are visually or hearing impaired.

Boards may also be required to make publications available for parents and children in multi lingual formats.

The Children’s Law Centre welcomes the recommendation that Boards would be required to publicise to parents, schools and other interested parties details of services within their area. Information and advice must also be provided on how to access services through the assessment and statementing process, where necessary.

Parents and schools also need further information in relation to the duties and responsibilities of Boards of Governors of schools to make provision for children without statements within the schools special educational needs budget. Guidance should be issued detailing types of provision that should be made available to children at school-based stages of the Code of Practice.


3.4 Conciliation Arrangements

The Children’s Law Centre welcomes the proposals to establish independent conciliation arrangements for resolving disputes with parents independently of the Board. In England, under the revised Code of Practice, LEA’s are now required to provide Disagreement Resolution Services.

The current position in Northern Ireland is that parents are requesting advice and assistance from a number of sources including Education and Library Boards, IPSEA, The Children’s Law Centre, Citizen’s Advice Bureaus and their MLA’s. It is important that if a centralised body is established to advise and assist parents that it is properly funded to ensure a quality service for all concerned.

Any conciliation service should also be utilised to assist in disputes arising between parents and schools regarding school-based provision at stages 1 – 3 of the Code of Practice.

It is essential that any formal conciliation process should run concurrently with and not compromise or delay a parent’s right of appeal to the SENT. Parents have a period of 2 months from the date of notice of the Board’s decision to lodge an appeal with the SENT and there are additional time limits applicable to lodgement of responses and further written evidence to the SENT contained within the Special Educational Needs Tribunal Regulations (NI) 1997 . Parents must be kept advised of the time limits in respect of the appeal process so that they do not miss deadlines and prejudice any ongoing appeal. Many appeals that are lodged with the tribunal are settled prior to hearing and the conciliation body could play an important role in minimising the work of the SENT, which is likely to increase following the extension of the tribunal’s remit to include disability discrimination appeals.

Furthermore, in keeping with the principles enshrined in Article 12 of the United Nations Convention on the Rights of the Child, children should be afforded the right to participate in any conciliation process concerning their special educational needs and provision and their views should be given due weight in accordance with their age, maturity and understanding.


3.5 (3) It is proposed that schools be required to notify parents that their child has been identified as having SEN (paragraph 2.2.3)

Question 2: Do you agree that schools should have a statutory duty to notify parents that the school has concluded that their child has SEN?

The Children’s Law Centre views good communication between schools and parents regarding identification and assessment of special educational needs as paramount to ensure parents satisfaction that procedures are being properly followed, to avoid unnecessary parental anxiety and to help demystify the assessment process.

One of the central focuses of the revised Code of Practice for the Identification and Assessment of Special Educational Needs for England was to encourage partnership between parents and professionals in identification and assessment of a child’s needs. It is clear from this approach that the parents contribution should be valued and that professional intervention may be more effective where they can draw on parents knowledge and expertise in relation to their child’s individual strengths and needs .

The Children’s Law Centre welcomes a statutory duty to notify parents of identification of SEN and agrees that a similar statutory requirement should also be placed on providers of early years education outside grant-aided schools.


3.6 (4) It is proposed to amend the (NI) Order 1996 so that, in certain circumstances, Boards only need name the type of school, and not name any particular school that it considers would be appropriate for the child (paragraph 2.2.4)

Question 3: Do you agree that Boards should not be required to specify the name of the school in Part 4 of a statement in cases where the parents have themselves made suitable alternative arrangements for their child’s education?

It has been indicated during the consultation process that such an amendment would apply in situations where parents have elected to send their child to private school or a specialist school, possibly outside the Northern Ireland jurisdiction.

It is difficult to understand the reasoning behind this proposal as if a Board has issued a statement in respect of a child it is clear that there is a legally binding contractual agreement between the parents and the Board, for the Board to maintain the child’s educational provision in accordance with the terms of the final statement.

If a parent has elected to accept full legal and financial responsibility for the child’s educational provision independently of the Board, then there is no purpose in issuing a final statement for the child.

The Children’s Law Centre supports IPSEA in their word of caution against any proposal that would permit the Board to transfer children within certain types of school without the requirement to conduct a review and amend the child’s statement accordingly.

Where the Board issues a statement or amends an existing statement, parents currently have a right of appeal to the SENT against the school named in Part 4 of the statement or the fact that no school has been named in the statement. Without further clarity in respect of the scope of this proposal, the Children’s Law Centre recommends that the current parental rights of appeal be retained.


3.7 (5) Statutory Assessments - It is proposed to give parents the right to appeal, following a request for an assessment made by a school (paragraph 2.2.6)

Question 4: Do you agree that parents should be allowed to appeal to the SEN Tribunal when the Board has refused an assessment request from the child’s school?

The Children’s Law Centre welcomes this proposal and strongly supports its incorporation into the new Bill. In our experience, many parents who have contacted our advice service have simply been unaware of the parental right to request a statutory assessment under Article 20(1) of the Education (NI) Order 1996 and have believed that they were dependent upon the school to make a formal request for assessment. Consequentially, parents have been not been aware of the appeal implications in not requesting an assessment on their child’s behalf.

The current position is that where a school has been turned down for an assessment parents must wait a period of six months before requesting a new assessment of their child’s special educational needs. This causes a great deal of frustration for parents and may have wide-ranging implications for the child’s education and development due to the delay incurred in mounting a new challenge against the Board’s decision not to assess. The current waiting lists for obtaining a board-employed educational psychologist exacerbate this delay.

The Children’s Law Centre furthers supports IPSEA in their recommendation that a statutory time limit should be introduced in the new Bill, stipulating a period of 18 weeks for service of a proposed statement on the child’s parents, in circumstances where a school requests a statutory assessment for the child. A similar 18-week statutory time limit is already in place since the 1st September 1998 in circumstances where a board has:

(a) served a notice on the child’s parents under Article 15(1) of its proposal to make an assessment; or
(b) received a request from the child’s parents under Article 20(1) to arrange for an assessment to be made,

and it is necessary under Article 16(1) for the board to make a statement .

Further amendment of the existing Regulations may be required in order to place a new duty upon the Board to follow time limits in these circumstances.


3.8 (6) Special Educational Needs Tribunal – it is proposed to require Boards conceding an appeal to comply with the parent’s request (paragraph 2.2.8)

Question 5: Do you anticipate practical difficulties with the proposals in relation to the SEN Tribunal?

The Children’s Law Centre supports this proposal on the basis that it should expedite the process of securing educational provision for the child, where appropriate and also that it should minimise the work of the Tribunal which is currently hearing undefended appeals. The latter point will be of further significance should the Tribunal’s remit be extended to include disability discrimination appeals.


3.9 (7) It is proposed to require Boards to give notice to parents of the time limits relating to an appeal to the Tribunal at the same time as notifying parents of their right to appeal (paragraph 2.2.9)

The Children’s Law Centre welcomes this proposal on the basis that it aims to assist parents by making the right of appeal more accessible for parents. SENT appeal forms and details of the Board managed advice and information service and independent conciliation arrangements (proposed above) should be provided to parents together with the letter of decision.
Parents should be notified of their right to engage the independent conciliation services to try to resolve any dispute. They should also be advised that they are not obliged to use conciliation services if they do not wish to. Finally, it should be made clear to parents that if they do enter into conciliation, they shall not remove or compromise in any way their right of appeal to the SENT within the specified time limits.


3.10 (8) It is proposed to require Boards to maintain statements until appeals are heard where appeals are against ceasing to maintain statements (paragraph 2.2.10)

The Children’s Law Centre agrees that it is in the interest of natural justice and the child’s best interests to maintain a child’s statement pending the outcome of any appeal regarding cessation of the Board’s responsibility to maintain said statement.

The Children’s Law Centre further endorses IPSEA’s recommendations that this proposal should be extended to ensure that existing provision is maintained pending an SENT appeal in the following circumstances:

a. where the Board proposes to amend a statement and change the description in Part 2 of the child’s special educational needs;
b. where the Board proposes to amend a statement and change the description in Part 3 of the special educational provision the child is to receive;
c. where the Board proposes to amend a statement and change the school named in Part 4 of the statement; and
d. where the Board proposes to amend a statement and no school is named in Part 4 of the statement.

It is of great concern that the Boards may cease to maintain a statement in circumstances where the Board’s proposals for amendment are subject to appeal. It is neither in the child’s best interests nor in the interest of natural justice that the child may be deprived of educational provision or may even be required to surrender a school placement pending the outcome of an appeal.

It is further acknowledged that when children are due to transfer from nursery to primary school or from primary to secondary school, that there is a need for Boards to finalise statements as early as possible in the year preceding transfer. This would afford parents a right of appeal to the SENT prior to September, when a new school placement is due to commence. Current process dictates that there is a waiting list of six to seven months from the date of lodgement of an appeal to the date of hearing. Therefore it is imperative that a February deadline be imposed for finalisation of statements regarding school transfer.

The Children’s Law Centre recommends that such a time limit be introduced under the new Bill to ensure continuity of suitable educational provision for children with special educational needs.


3.11 (9) It is proposed to assist parents by clearing up any ambiguity when Boards are considering making an assessment of a child (paragraph 2.2.11)

Article 15 of the Education (NI) Order 1996 empowers the Board to make a statutory assessment of a child’s special educational needs. The Board shall take this action where it feels that it is necessary for it to determine any special educational provision, which a child’s learning difficulty may call for.

Under Article 15(1) of the Order, the Board must serve the child’s parents with a notice informing them that it proposes to make an assessment of the child’s needs; advising them of the procedures involved; appointing a Board officer from whom the parents may acquire further information upon request; and notifying the parents of their right to make representations and to submit any written evidence to the Board, within 29 days from the date of service of the notice. The parents may arrange a meeting with the appointed Board officer in order to make their representations within the specified period. Once the Board has had an opportunity to take account of any representations and any evidence submitted by parents in response to the notice, it shall make a decision whether to conduct a statutory assessment of the child’s needs.

The Children’s Law Centre endorses the recommendation to clear up any ambiguity regarding the Board’s responsibilities following a ‘proposal’ to make an assessment of the child.

The Board is also under a statutory duty to provide notice in writing of their decision regarding a statutory assessment to the parents of the child and their reasons for making it. In Northern Ireland, there is no legislative time limit dictating how soon this notice should be served, in circumstances where a Board decides not to assess a child. The Code of Practice recommends that the Board should notify the parents of a negative pronouncement, within six weeks. In England and Wales, the local education authorities are legally obliged to inform parents of their decision within six weeks of the date of request for assessment. Also, where the Board decides not to proceed with a statutory assessment, it must notify the parents in writing of their right to appeal against that decision to the SENT.

Finally, it is recommended in the Code of Practice that a notice in lieu of a statement should be issued by the Board, for the benefit of the child, identifying any learning difficulties experienced and advising the Board of Governors what provision should be made in school to meet the child’s needs.

The Children’s Law Centre recommends introduction of a six-week time limit under the new Bill, requiring Boards to notify parents of a negative pronouncement to any request for statutory assessment of their child. We further recommend the introduction of a statutory duty requiring Boards to issue a notice in lieu of a statement, recommending any school-based provision suitable to need the child’s needs.


3.12 (10) It is proposed to strengthen the rights of children with special educational needs to a place in an ordinary school (paragraph 2.2.12)

Question 6: Do you agree that the proposals to strengthen the right to a mainstream place strike the balance between strengthening inclusion and protecting the interests of other children?

The Children’s Law Centre welcomes the proposals regarding amendment of Article 7 of the Education (NI) Order 1996 and for the introduction of additional statutory provision to promote inclusion of children with special educational needs in ordinary schools.

The Consultation Document recommends removal of the requirement in sub-paragraph 7(2)(b)(i) dealing with whether the school could meet the child’s special educational needs and sub-paragraph 7(2)(b)(iii) which stated that a child could not be placed at an ordinary school if the Board regarded such placement to be incompatible with the efficient use of resources. It is suggested that the only criteria to be retained from the 1996 Order is that contained within sub-paragraph 7(2)(b)(ii), which requires compatibility with the provision of efficient education for the children with whom (the child with special educational needs) shall be educated.

The Children’s Law Centre would argue from a human rights perspective that all of the criteria contained within Article 7 should be repealed. This would afford all parents of a child with special educational needs the right to have their child educated in an integrated mainstream setting, if that is their preference. If appropriate provision is available for children and is not resource led, inclusion in the mainstream should be attainable for most children with SEN. The onus is on the Board, to ensure that suitable provision is in place to guarantee that other children with whom the child with special educational needs is educated receive an effective education.

It is of significance that parents have a great deal of difficulty in securing independent professional reports in Northern Ireland. This makes it extremely difficult for parents to challenge any opinions regarding description of need, suitable provision and school placement provided by an educational professional employed by the Board. There is concern that where a school refuses to place a child on the basis that they cannot maintain the child’s individual needs, that there is no redress for parents without reasonable access to a second opinion .

It has perhaps been overlooked, that the same criteria for compatibility are mirrored in legislation relating to school-based provision for children without a statement of special educational needs.

Article 8(2) of the Education (NI) Order 1996 provides that the Board of Governors of a mainstream school shall ensure that the SENCO and teachers responsible for making special educational provision for a child, shall secure such provision, in so far as it is reasonably practicable and compatible with –

a. The child receiving the provision which his/her learning difficulty calls for
b. The provision of efficient education for other children in the classroom
c. The efficient use of resources


The Children’s Law Centre recommends that Article 8 should also be amended to remove the ‘efficient use of resources’ criterion included in Article 8(2)(c). If the child’s needs cannot be met by the school or other children’s rights to education are likely to be infringed, then it is necessary for the child to be assessed by the Board to ensure that suitable provision is made.

Article 23, UNCRC

Article 23 of the United Nations Convention on the Rights of the Child provides as follows:

“State parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community.

Recognising the special needs of a disabled child, assistance extended… shall be designed to ensure that the disabled child has effected access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child’s achieving the fullest possible social integration and individual development, including his/her cultural and spiritual development”.

It is clear from the wording of this Article, that the United Nations Convention strongly promotes social integration and active participation in the community for children with disabilities through the medium of education.

All children with SEN and disability must be provided an opportunity to access the Northern Ireland Curriculum at a level, which is consistent with their ability and aptitude. For some children this may only reasonably be achieved by securing a placement in a mainstream school. Decisions regarding the assessment of a child with SEN or disability for suitability to attend mainstream school are left to the discretion of Education and Library Boards. Emphasis is placed on the need for proper assessments to be carried out in respect of each child’s individual needs. Boards must also ensure that placements and educational provision allocated to every child are consistent with need.

The key factors in ensuring a successful placement should include the following:

• Allocation of adequate resources by the Board to meet the statemented child’s needs
• Where a child is assessed as having special educational provision but is not statemented, for the Board to ensure that funding provided to a school under the special educational needs budget is properly spent on provision to meet the individual child’s needs
• The term ‘integration’ must be interpreted pro-actively by schools, who should aim to promote inclusion of the child with SEN or disability in all the same activities as other children within the school environment
• Regular review of a child’s statement of special educational needs and educational progress
• Participation of the parents and the child in continuing assessment


3.13 (11) Amendment of statement – It is proposed to revise the procedures which must be followed by Boards when making, maintaining and amending statements of SEN (paragraph 2.2.16)

The Children’s Law Centre welcomes the proposals to afford parents an opportunity to meet with the Board when it proposes to amend a child’s statement.

It is of some concern that parents may be limited in their entitlement to express preference for a school, in circumstances where a re-assessment has not be completed. We anticipate that this may create problems when a child is due to transfer from primary to secondary school, unless a deadline for completion of assessment is introduced under this Bill. We previously recommended a cut off date of February in the year preceding transfer to ensure that parents are given a reasonable time scale to resolve any disputes regarding school placements with the Board. (See point 8, above).

Under Schedule 2, paragraph 3(3) of the Education (NI) Order, the Board must comply with the parent’s expressed preference for a grant-aided school and name that school in Part 4 of the statement unless:

(a) the school is unsuitable to the child’s age, ability or aptitude or to his special educational needs, or
(b) the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources.

Current legislation places an onus on the Board to establish any grounds why the parent’s expressed preference cannot be met. The enrolment number applicable to a school may be exceeded to facilitate the admission of a child with special educational needs.

The Children’s Law Centre recommends that the above Schedule must also be amended, to reflect any changes made to Article 7 of the Order.


Disclosure of statements, proposed statements and proposed amended statements to schools

Article 8 of the European Convention of Human Rights deals with the right to private and family life and provides as follows:

‘Everyone has a right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of crime or disorder, for the protection of health or morals, or for the protection of the rights and freedoms of others’.

The proposal to require Boards to send out statements containing confidential information about children, their parents (and possibly their siblings) to any schools which the Board are considering naming in the child’s statement is inappropriate in light of Convention law.

The Children’s Law Centre strongly recommends that Board’s should obtain the parent’s consent, prior to disclosing this information to schools.


Occupational Therapy as non-school provision

The Children’s Law Centre supports IPSEA in their submission that there are cases where occupational therapy is an integral part of a child’s education and therefore should be included in Part 3 of the statement.



4.0 Issues regarding Special Educational Needs and Provision that have been omitted from the Consultation Document

4.1 Children without a statement of special educational needs

4.2 (a) Duties upon Boards of Governors

There are two main concerns arising from the statutory duties upon Boards of Governors, detailed under the 1996 Order:

1) The statutory obligation is neither clearly defined nor absolute. The Board of Governors is required only to use its ‘best endeavours’ to secure suitable provision . There is no statutory interpretation of the Board of Governors duty to use ‘it’s best endeavours’ or how this obligation may be discharged.

2) The requirement for the Board of Governors to ensure that the SENCO and teachers make special educational provision is qualified by resources based argument .

In her book, Laura Lundy has evaluated the efficacy of the Board of Governor’s duty with reference to a House of Lords’ debate following the introduction of the draft Education Act (1993) in England and Wales. In the debate, the Board of Governor’s duty to ‘use its best endeavours’, was described as a “powerful duty”, and was more particularly interpreted by Baroness Blatch as requiring that “governors must do everything that they possibly can to secure the provision”.

Ms. Lundy has indicated a view that this “is probably an over generous interpretation of the extent of the obligation” imposed upon the Board of Governors by statute.

The Children’s Law Centre recommends that a clearer statutory definition of the Board of Governors duties be introduced under the new Bill. We also recommend that Article 8(2)(c) of the 1996 Order be repealed to remove the ‘efficient use of resources’ qualification currently applied to school-based provision for children without statements of special educational needs.


4.3 (b) Funding for budgets in mainstream schools

There is limited funding for special educational needs budgets in mainstream schools. Furthermore, such funding is not ring-fenced for special educational needs provision for non-statemented children. Principals and Boards of Governors sometimes have very difficult decisions to make in relation to the allocation of the school budget to individual pupils who are without statements of special educational needs, to make school based provision to meet their needs.

Non-statemented children may be provided additional resources from two other sources, as follows:

At Stage 3 of the Code of Practice, an Education and Library Board may provide funding for outreach support to a school for limited provision, which may include speech and language advice/support for teachers (not therapy), peripatetic support for hearing impaired pupils, audio equipment for hearing impaired pupils, and reading support. Schools are required to make application for outreach support to the relevant Education and Library Board in respect of non-statemented pupils on the basis of individual need.

Also, Article 86 of the Education (Northern Ireland) Order 1998 states that provision may be made by the Education and Library Board, in exceptional circumstances, to meet a child’s needs. The legislation is relation to exceptional provision is unclear as there is no criterion for application to obtain such provision and there is no departmental guidance in respect of entitlement. From informal discussion with the Department of Education regarding this issue, we are advised that exceptional provision is normally only made in circumstances where imminent provision is necessitated, due to an accident, an emergency or where an individual pupil has a sudden deterioration in their condition that needs to be addressed on an interim basis pending reassessment or review of an existing statement of special educational needs.

The Children’s Law Centre recommends that clear Departmental guidance should be issued detailing criteria for entitlement to exceptional provision.

In circumstances where a Board refuses to conduct a statutory assessment, refuses to make a statement or to issue a final statement expeditiously for a child, a school may have to ‘juggle’ its resources until such times as the statementing process is complete, or in the event of a parental dispute, an affirmative direction is given by the Special Educational Needs Tribunal. Often the period of time which lapses between a school’s referral or a parent’s request for statutory assessment and the issue of a statement of special educational needs can take several years.

For the Board of Governors to truly honour the spirit of this legislation, it is recommended that the Department of Education and the Boards must review the allocation of funding to meet the needs of children in mainstream schools, who have special educational needs but are in not in receipt of a statement of special educational needs.

Any monies that are allocated in the future should be ring-fenced to meet the special educational needs of children without statements.


4.4 (c ) Accountability of Boards of Governors for funding allocated

Article 9(5) of the 1996 Order the Board of Governors must include in the school’s annual report details of what steps have been taken by it to secure the implementation of its special educational needs policy in relation to the provision of education for children with special educational needs.

At present the support available at school-based stages seems to vary enormously depending on the school’s policy around allocation of funding. Clearly, funding should be allocated on the basis of each child’s individual needs.

Annual reports from schools are often vague in respect of funding allocation.

The Children’s Law Centre identifies the need for an effective system to monitor the steps being taken and the funding being allocated by schools to meet the educational needs of children without statements of special educational needs.

We recommend that Article 9(5) of the 1996 Order be amended to specify information required from Boards of Governors on an annual basis, in respect of each child who has been referred on to the Code of Practice for Identification and Assessment of Special Educational Needs.

We further recommend that new duties be introduced under the Bill requiring Education and Library Boards to effectively monitor school-based provision in each school within their Board area.

4.5 (d) Redress for Parents

The current legislation provides no redress for parents who are dissatisfied with school-based provision for children without statements of special educational needs. The SENT does not adjudicate on such matters and parents may only appeal against decisions by the Board not to conduct a statutory assessment of an individual child’s needs.

The Children’s Law Centre recommends that new duties be introduced under the Bill requiring the Boards to issue clear guidance for schools relating to provision, to adjudicate on the suitability of school-based provision and where necessary, to direct schools to make suitable provision under their special educational needs budget.

Ultimately, the Children’s Law Centre recommends that the remit of the SENT should be extended to enable parents to appeal any direction or guidance issued by the Board to a school, regarding school-based provision for children without statements.



4.6 Children with Statements of Special Educational Needs

4.7 Recommendations for review of the time limits applicable to the assessment of special educational needs and the statementing process
The Department of Education decided not to impose certain time limits on Education and Library Boards in Northern Ireland, although LEA’s in England and Wales are legally bound by strict time constraints. For example:


1) There is no time limit placed on the Board to respond to a parental request for assessment when they decide not to conduct a statutory assessment.

- Although the Code of Practice recommends that Boards “should inform parents within 6 weeks” and in England and Wales, parents must be informed within 6 weeks of the authorities decision not to assess a child.

2) There is no time limit placed on the Board, when writing to inform parents after it has conducted an assessment that it has decided not to issue a statement.

- It is recommended under the Code of Practice that parents should be informed immediately, in cases where the Board is able to decide quickly that a statement is not necessary and in England and Wales the LEA has 2 weeks from completion of the assessment to decide of a statement is necessary

3) There is no time limit placed on the Board to finalise the statement following the production of a proposed statement.

- Although the Code of Practice says that “Boards should aim to complete the process within a further 8 weeks” and in England and Wales the LEA has 8 weeks to consider parents comments before finalising the statement.

4) There is no time limit placed on the Board to respond to a parent’s request for an amendment of the named school on an existing statement.

- The Code of Practice advises “normally, parents should be told of the Board’s decision within 8 weeks and in England and Wales the LEA must inform parents within 8 weeks of the initial request.

IPSEA has expressed concern that the Northern Ireland legislation is far from satisfactory on the basis that children were being denied the legal protection of legislative time limits and although the Code of Practice recommends guidance on time limits to promote ‘good practice’ by education authorities, such recommendations are unenforceable in law.

Article 28 of the Education (Northern Ireland) Order 1996 states as follows:

“Regulations and Orders made by the Department under this Part may contain such incidental, supplementary and transitional provisions as the Department thinks fit”.

The Education (Special Educational Need (Amendment) Regulations (Northern Ireland) 1998 were introduced on the 1st September 1998 and made statutory provision of the 18-week time limit for the Board to serve notice of a proposed statement upon parents.

It is clear from this provision that the Department of Education should have power to introduce supplementary primary legislation which shall include the implementation of strict statutory time limits, as has been exercised in England and Wales.

The Children’s Law Centre recommends that the Department of Education consider the introduction of the above procedural time limits under the new Bill. Introduction of these new time limits would ensure that our procedures are at least up to date and of a comparable standard with current procedure in England and Wales.


4.8 Recommendations for participation of children in SENT proceedings

The Education (Northern Ireland) Order 1996 does not make any reference to the participation of the child with SEN in Tribunal hearings.

The child does not have an absolute right to make representations to the Tribunal in writing nor to attend the hearing. There is no provision for separate representation for a child in proceedings under current law and the grounding application is made by the parent in all instances, rather than affording a separate right of appeal to the child.

The child may attend the hearing in two circumstances:

1) As a witness
2) By request of the parents, following approval by the SENT

The reality is that a child has only attended a SENT hearing on one occasion to date in Northern Ireland, upon parental request. In another case a child’s siblings attended to give evidence to the panel.

Laura Lundy refers to this issue in her publication, ‘Education: Law Policy and Practice in Northern Ireland’. She comments on the potential pros and cons of introducing a child to SENT proceedings:

“On the one hand, the child may well have a significant input into the proceedings and their attendance will give the tribunal a chance to directly observe the child. On the other hand, tribunal venues may not cater for children and young people who may become restless during the procedures and disrupt the hearing. More significantly perhaps, there are concerns over the psychological impact, which the evidence of a child’s learning difficulties may have on the child. As a compromise some advisers recommend that a child with sufficient understanding should send a letter or a video to the tribunal outlining their views as part of the written evidence” .

Should a child’s right of participation be limited in this way?

Decisions regarding a child’s involvement in proceedings should always be taken with the child’s best interests in mind.

The ‘voice of the child’ should be taken into account, where it is the child’s wish to give evidence; to make their own representations; or to be separately represented at SENT hearings. This may be of particular significance in circumstances where the child and his/her parents do not agree on the child’s identified SEN or the provision sought on the child’s behalf. (It is accepted that this would not occur often, however, it is essential that mechanisms be put in place to protect the child’s interests in such situations).

Children are afforded separate legal representation in specified public law proceedings and in some private law proceedings – Should decisions regarding a child’s education be distinguished as of lesser importance in law? Article 12, (UNCRC) enshrines the fundamental human rights principle, that children should be afforded freedom of participation in all decisions concerning them.

Accordingly, the Department should amend the current Special Educational needs Tribunal Regulations to introduce new procedural requirements to ensure active participation of children throughout the course of proceedings. .

The current practice in England and Wales is that LEA’s submit reports to the SENT detailing the children’s views, as ascertained in interviews with an educational psychologist. Furthermore, since the introduction of SENDA in England and Wales, the children’s views are recorded and included in the appendix to the child’s statement of special educational needs. No child has requested the opportunity to address the Tribunal in England to date.

If a child makes submissions purely on the basis of a pre-prepared written statement or video presentation, then the tribunal will not able to interview the child in relation to the content of their submissions, nor shall the child be in a position to challenge any new evidence introduced at hearing by the Board or question the SENT panel in relation to any proposals made at the hearing. A video-link system may be more appropriate to ensure a child’s participation throughout all relevant stages in proceedings.

Legal advice and representation for parents in tribunal proceedings is not covered by Legal Aid. The Independent Panel for Special Educational Advice (IPSEA) provides an excellent advice and representation service for parents in Northern Ireland, however it is a registered charity and its resources are limited. A legally qualified representative always represents the Education and Library Board (from the Board’s Joint Legal Services Department), at Tribunal hearings.

There would also be Legal Aid implications should the law be reviewed to allow separate representation for children in SENT proceedings. There is no Legal Aid provision currently made to parents for representation at tribunal hearings. If a child were to challenge current procedures and seek separate representation in future SENT proceedings, it is anticipated that they would first have to mount a challenge to the Legal Aid Department in order to obtain funding for professional advice and representation at hearing.

Legislative reform would also be necessary before a child could lodge an appeal to the SENT against a decision by the Board, independently of their parents.

It is recommended that the Department consult widely in this area to ensure that the child’s best interests are served by any new procedures they aim to adopt.


4.9 Availability of independent experts and financial information for parents

Educational Psychologists

In Northern Ireland, almost all educational psychologists are employed by the Boards and so are not in a position to provide independent reports to parents. Conversely, in England and Wales, there is a pool of independent experts willing to provide impartial analysis of a child’s SEN and the provision required to meet their needs. If parents from Northern Ireland were to request reports from specialists outside the jurisdiction, the costs of obtaining reports and the additional travel costs of attending with their children for examination are very high.

There is currently only limited Legal Aid available to parents under the Green Form Scheme for initial advice and assistance to meet this expense. The current cost of obtaining an independent educational psychologists report in Northern Ireland is estimated at £750.00. Green Form will cover only a small proportion of this cost, of approximately £150.00. The fact that there is no Legal Aid available to cover the additional cost of obtaining a second professional opinion and the cost of legal representation at the SENT hearing, generally means that only middle class parents can afford to challenge the Board in relation to the type of provision, or indeed lack of provision, offered for their child.

The Children’s Law Centre recommends that new powers be introduced under the Bill, to enable the SENT to commission independent reports, (to fund the tribunal to cover the cost of obtaining such reports) and to order the Board to reimburse parents with the cost of any independent reports obtained, in the event of a successful appeal against the Board.


Requiring expert witnesses to attend as witnesses at SENT hearings

The current procedures in respect of calling educational professionals as expert witnesses at SENT hearings is that parents are required to obtain a witness summons from the SENT and to personally serve the summons on any expert witness five days before the date of hearing. Education and Library Boards will not bring board-employed professionals to the tribunal unless parents have served a summons.

The Children’s Law Centre recommends that new powers be introduced under the proposed Bill to provide a mechanism for service of summonses by the SENT (through process servers), rather than parents, as is normal procedure in many court proceedings.


Financial Information

The “efficient use of resources” argument is the deciding factor in most decisions by Boards whether to make specific educational provision for a child. The onus should be placed on the Boards to explain why funding for provision is not available for an individual child.

In England and Wales, the SENT provides written evidence of the LEA’s budgets and expenditure to parents in advance of Tribunal proceedings. The SENT panel also deciphers this financial information if parents raise queries at the hearing. This information is not disseminated to parents in Northern Ireland. It is invariably difficult for parents to challenge any decision by the Board on financial grounds.

The Children’s Law Centre recommends, that if ‘the efficient use of resources’ criteria is not removed under existing legislation (as previously recommended), that SENT procedures be introduced in Northern Ireland to ensure that parents have ‘equality of arms’ in interpreting financial information relevant to tribunal proceedings.


4.10 The need to quantify special educational provision in statements

The Children’s Law Centre endorses the recommendations of IPSEA that there should be a clear and enforceable duty upon Boards to quantify the special educational provision a child should receive in Part 3 of a statement.

The Children’s Law Centre recommends that the 1996 Order should be amended under the new Bill to create a mandatory requirement that Boards specify the type and quantity of special educational provision in Part 3 of every statement.


4.11 Requiring the Board’s to obtain professional advice on the amount of special educational provision required to meet a child’s needs.

The Children’s Law Centre acknowledges IPSEA’s comments that some Board officers and Trust managers instruct professionals not to include their opinion in relation to the quantity of provision required in assessment reports.

Accordingly, we support IPSEA in their recommendation that a new legal duty should be imposed upon the Board, under the new Bill, to seek clear and specific written advice in respect of the amount of provision required to meet an individual child’s needs and to share this information with parents.

This recommendation is of particular significance when considered alongside the difficulties highlighted in paragraph 4.9 (above) in respect of parent’s access to independent educational advice regarding their child’s individual needs.


4.12 The Resources Issue – Speech and Language Therapy Provision in Northern Ireland

In October 2000, a questionnaire survey was conducted by a Joint Regional Educational Review Group comprising representatives from the ELB’s and HPSS Boards, who subsequently published ‘A Report of the Survey Findings of Therapy Input to Children with Special Educational Needs in Northern Ireland’.

Major concerns in relation to speech and language therapy were highlighted in the report as follows:

• “At a human resource level the retention and recruitment of therapists working with children with special educational needs has been of ongoing concern” .

• Historically, there has been no funding to cover periods of sick leave, annual leave or maternity leave for therapy services- In many cases provision is terminated during to lack of cover for these periods.


The legal position in relation to service provision is as follows:

1) The Duty upon the Education and Library Board

Article 16 of the Education (Northern Ireland) Order 1996 requires the ELB to ensure that a child is receiving special educational provision commensurate to the child’s needs.


2) The Duty upon the Health and Social Services Trust

Under Article 14(1) of the 1996 Order the HSST’s have certain duties in relation to children who have not yet reached school going age. Where an authority suspects that a child has special educational needs it must inform the parents of its opinion and bring its suspicions to the attention of the appropriate Education and Library Board.

Article 14(4) evokes a duty upon the health authorities to assist an Education and Library Board in the making of an assessment under Article 15 or a statement under Article 16, in circumstances where the Board requests its help. Further more, where an ELB requests advice from a HSST, during the course of a statutory assessment, that authority must comply with the Boards request within 6 weeks .

Paragraph 7 of Schedule 2, The Children (NI) Order 1995 requires the Trust to provide services designed to minimise the effect on disabled children of their disabilities and to give such children the opportunity to lead lives which are as normal as possible.

In the English Court of Appeal decision of R v Lancashire County Council ex parte M , it was confirmed that speech therapy is educational provision notwithstanding the fact that the service is provided by the health service rather than the local educational authority. The reasoning behind this finding was rather succinctly summed up in the judgement as follows:

“ To teach an adult who has lost his larynx because of cancer might well be considered as treatment rather than education. But to teach a child who has never been able to communicate by language, whether because of some chromosomal disorder or because of some social cause seems to us just as much educational provision as to teach a child to communicate by writing” .

The issue in this case was the failure of the LEA to make speech and language therapy provision for a child in accordance with the terms of a statement of special educational needs. The court at first instance held that although there was evidence that speech therapists were in short supply and not available to make provision for the child, this did not have any bearing on the LEA’s statutory duty to make such provision.

The Court of Appeal upheld this decision and indicated although it was not for the Courts to dictate how the LEA’s or health authorities were to discharge their statutory duties:

“…There is nothing…which prevents a local educational authority from employing speech therapists if that should prove necessary to enable it to comply with its statutory duties; alternatively, it can go to other district health authorities or to private speech therapists”.

This judgement has very clear implications, when read alongside the findings of the Survey Report on therapy input in Northern Ireland. This Court of Appeal decision was very clear in finding the LEA and the health authority fully accountable for making speech and language therapy provision, irrespective of human resources arguments raised by the defendants.

The Children’s Law Centre has major concerns regarding the lack of resources available and waiting lists for special educational provision and other support services for children with special educational needs. The lack of resources, particularly in relation to speech therapy provision in Northern Ireland, may lead to a human rights based legal challenge on the grounds of Article 2, Protocol 1 (The Right to Education), Article 14 (Prohibition of discrimination on the grounds of disability) and Article 10 (The Right to Freedom of Expression) .

Speech and language therapy has been clearly defined as ‘educational provision’ (in the above Court of Appeal decision) and accordingly, should always be detailed in Part 3 of the child’s statement of special educational needs.

The Children’s Law Centre recommends that the Education and Library Board’s and the Health and Social Services Trusts review their procedures in relation to allocation of resources for speech therapy to take full cognisance of their legal duties regarding such provision.
We also recommend that the statutory obligations of the DHSSPS be clearly defined in the new Bill.


4.13 The need to provide the Tribunal with powers of enforcement in respect of any decision it makes.

Current legislation does not empower the tribunal to enforce any decision it makes against the Board.

Parents may seek legal redress for a Board’s non-compliance with the directions of the SENT by recourse to the High Court, by way of an application for judicial review. Such proceedings are potentially very costly, both for the ‘public purse’ when parents are entitled to seek legal aid in the child’s name and also for the Board in defending any proceedings.

Further to this, IPSEA has raised concerns that the SENT is not bound by it’s own precedent and so deals with each appeal on a case-by-case basis. Neither does the SENT always accept authorities presented with reference to previous decisions of the courts in England when making its decisions.


The Children’s Law Centre recommends that tribunal policy and procedure be changed, (under the new Bill), to introduce new powers of enforcement and appropriate sanctions for non-compliance with SENT directions by the Boards.

We further recommend that the tribunal be required:

(a) to have regard to previous decisions reported in the English courts (and SENDIST), and

(b) to be bound by its own precedent in any future appeal decisions.




5.0 Disability Discrimination in Education – Application for Schools

5.1 Summary of new legislation proposed under the Consultation Bill

Part 2 of the new Bill deals with disability discrimination in schools. It proposes to place new duties on Education and Library Boards and schools (including independent schools) as follows:

(1) a duty not to treat disabled pupils less favourably, without justification, for a reason which relates to their disability;

(2) a duty to make reasonable adjustments so that disabled pupils are not put at substantial disadvantage compared to pupils who are not disabled (but there would be no duty to alter physical features or provide auxiliary aids and services); and

(3) a duty to plan strategically and make progress in increasing accessibility to school’s premises and to the curriculum and in improving the way in which written information, provided to pupils who are not disabled, is provided to disabled pupils.


Part 3 of the new Bill proposes to place new duties on further education institutions and higher education institutions as follows:

(1) a duty not to treat disabled students less favourably, without justification, for a reason which relates to their disability; and

(2) a duty to make reasonable adjustments to ensure that people who are disabled are not put at substantial disadvantage compared to people who are not disabled in accessing further and higher education.

5.2 The Definition of disability

The definition of disability proposed in the new Bill is taken directly from the Disability Discrimination Act 1995. Although not all disabled children will have ‘special educational needs’ or ‘learning difficulties’, many children with special educational needs will satisfy the statutory definition of ‘disability’ and shall therefore benefit from the additional protections introduced under any new legislation.

In light of the numerous gaps highlighted above in current special educational needs legislation and procedure, the Children’s Law Centre broadly welcomes the new proposals.

The proposed Bill makes it unlawful for the body responsible for a school to discriminate against a disabled pupil or prospective disabled pupil in respect of admission applications and arrangements, the provision of education or associated services at the school and exclusions from school.


5.3 What type of discrimination is ‘justifiable’ in schools?

The proposed legislation provides schools with two broad defences in relation to its duties:

(1) A school may still discriminate against a pupil or prospective pupil if it is considered justified;

(2) If at the time the school or responsible body did not know, and could not reasonably have been expected to know, that the child was disabled, then the school does not discriminate against the child.


Justification of less favourable treatment

The aim of the proposed Bill is to ‘create so far as is reasonably possible, a level playing field for all children regardless of whether or not they are disabled’.

The discrimination is not unlawful where less favourable treatment can be justified in one of two ways:

(1) Schools may still select on the basis of academic ability, where this is currently permitted by statute; and

(2) In the arrangements made for the provision of education, less favourable treatment may be justifiable in some circumstances, though each case is judged on its merits .

Since the introduction of SENDA in England and Wales, the scope of the justification defence for schools, is interpreted in the same way in respect of claims of less favourable treatment and failure to make reasonable adjustments. The response of the school may be justified ‘only if the reason for it is both material to the circumstances of the particular case and substantial’ . In many cases the decision as to whether the approach of the responsible body was justified will turn on whether reasonable steps have been taken by a school to prevent disadvantage to the pupil. Accordingly, if there were reasonable adjustments that should have been made but were not, it may not be possible to justify less favourable treatment of a disabled pupil .


5.4 The relationship between disclosure and protection from disability

A question is posed in the Consultation document in relation to disclosure of a pupil’s disability and the conflicting duty of respect for the pupil’s confidentiality regarding their disability:

Question 7: Do you agree that it is necessary, where it is not obvious that a student is disabled, for a student to disclose his/her disability to the institution in order to benefit from the new duties?

It is reasonable that where it is not obvious that a child is disabled, that some disclosure should be made by the pupil or parents to benefit from the protections afforded under the new Bill. However, a school could only rely upon this defence if the school could not reasonably have been expected to know that the child had a disability.

If any staff member is aware that a pupil has a disability, the responsible body of the school may not be able to rely on this defence.

Furthermore, the anticipatory nature of the requirement to make reasonable adjustments means that schools must ensure that provision of education or associated services at the school is non-discriminatory against prospective pupils as well as existing pupils at a school. On that basis, schools are technically required to make reasonable adjustments without knowledge of an individual pupil’s disability.

Where a parent or child discloses a disability but asks the school to treat the disclosure with confidentiality, the nature of the reasonable adjustments taken by the school may be modified, by agreement between parents and the school, in order to respect the child’s confidentiality.

Question 9: If a situation develops where a child develops a condition, or is not aware of any existing condition, and it starts to affect his attendance and/or studies:

i) is it reasonable to expect an education provider to consider whether it is a disability related cause; and

ii) should a student be able to pursue a complaint on the basis that the education provider should have considered whether it was a disability related cause?

The Children’s Law Centre is of the view that a school should be under a duty to consider a disability related cause where a child’s attendance or school performance deteriorates. The procedures to be followed by a school in order to investigate and assess any change in a pupil’s behaviour should be indicated clearly under the Code of Practice. A complaint should be answerable by the body responsible for a school, in circumstances where the school fails to comply with it’s responsibilities under the proposed legislation.

5.5 The Code of Practice

It is clear that a great deal will hinge on the contents of the Code of Practice, which shall provide practical guidance and advice on how an educational provider is expected to meet their new duties.
The Children’s Law Centre has concerns that although it is proposed that the Code of Practice may be taken into account by a court or tribunal in the instance of appeal, there will be no statutory duty to have regard to the provisions contained within the Code.

The Children’s Law Centre recommends that there should be a statutory duty upon education providers to comply with the Code of Practice.

Previous experience in respect of the Code of Practice for Identification and Assessment of Special Educational Needs, shows that even a statutory duty ‘to have regard to’ the provisions contained within the Code of Practice has been insufficient to ensure compliance with the Code of Practice by all educational providers.


5.5 The Duty to Make Reasonable Adjustments

The extent of this duty for schools is limited by two main exceptions:

(1) Schools are not required to provide auxiliary aids or services; and

(2) Schools are not required to remove or alter the physical features of premises.

The reasoning behind the first exception is that special educational needs legislation is thought to ensure provision of auxiliary aids and services, where necessary, to meet a child’s individual needs.

The second exception is due to the introduction of a staged process, where schools are first required to prepare accessibility strategies and plans, with the aim of increasing the extent to which disabled pupils can participate in the curriculum and increase the physical accessibility of school premises.

This proposal is practical and reasonable to ensure effective consultation around planning decisions. However, it is of concern that a timescale for implementation of such plans and strategies is currently undefined. The legislation shall provide limited assistance for children who cannot access the school of their choice on the grounds of their disability.

Neither of the above exceptions are applicable to further and higher education colleges.

The Children’s Law Centre is concerned that the proposed exclusion of provision of auxiliary aids and services in this anti-discrimination legislation is denying parents of children with disability the right to an additional course of redress where educational provision is being denied.

This is regrettable, on the basis that there are currently many circumstances (many of which have been identified in this submission), where children are consistently denied access to services and provision due to gaps in the special educational needs legislation and delay in procedures for assessment and provision.

We concur with IPSEA’s submission that a child’s access to special educational provision is very often governed by the parent’s ability to understand complex legislation and guidance under the Code of Practice and the parent’s commitment to enforce the child’s rights, (both personally and financially), by lodging an appeal with the SENT.

If denial of auxiliary aids and services were to be included under disability discrimination legislation, the powers of the Equality Commission would be extended to advise and even represent parents of children with disability covered under this provision.


5.6 The Role of the Special Educational Needs Tribunal

Question 11: Do you agree that the new rights of redress for pupils should mirror the proceedings of the existing SEN Tribunal with its emphasis on remedy through educational means? (Paragraphs 3.2.17 – 3.2.21)

It is envisaged that the SENT remit shall be extended to cover complaints in relation to school’s duties not to discriminate, to make reasonable adjustments to policies, practices and procedures and to take reasonable steps to provide education by alternative methods.

The Tribunal could potentially hear complaints in respect of SEN and disability discrimination at the same time.

It is not envisaged that the Tribunal would have power to award financial compensation in successful cases of disability discrimination. Remedies would be restricted to issuing directions upon responsible bodies for schools, to ensure an appropriate educational remedy for the child.

Conversely, it is proposed that disabled students in further and higher education colleges will only have recourse to the County Court, as is the current legal position regarding complaints of racial or sexual discrimination in education. The only remedy that is available from the County Court is financial compensation, including damages for injury to feelings. The courts have limited expertise in disability issues and cannot impose orders on further and higher education institutions regarding a student’s future educational requirements.

The Children’s Law Centre agrees that the SENT should be reconstituted to hear disability discrimination appeals and that it is the appropriate forum for such appeals. However, we must raise the same concerns regarding enforcement of the Tribunal’s directions as previously indicated in paragraph 4.13 above.


Should you have any queries in relation to this submission please contact Kathryn Lavery, Solicitor, at the Children’s Law Centre

Tel No: 028 90 245704
Fax No: 028 90 245679
e-mail: kathrynlavery@childrenslawcentre.org