Response to the Equality Commission for Northern Ireland’s consultation on the Draft Code of Practice for Schools, issued in accordance with the requirements of the Special Educational Needs and Disability (Northern Ireland) Order 2005

Children’s Law Centre
June 2005


Contents


Introduction                                                                                                           3

General Comments                                                                                                3

Chapter 1 – Introduction                                                                                        4

Chapter 2 – Definition of a Disabled Person – Who has rights
Under the Order?                                                                                                   5

Chapter 3 – Special Educational Needs                                                                 6

Chapter 4 – Overview of Disability Discrimination under SENDO                          11

Chapter 5 – Less Favourable Treatment                                                               13

Chapter 6 – Reasonable Adjustments                                                                   14

Chapter 7- Victimisation                                                                                       16

Chapter 8 – Lack of Knowledge Defence                                                             16

Chapter 9 – Confidentiality                                                                                  17

Chapter 10 – Good Practice for Inclusive Education                                            17

Chapter 11 – Accessibility Strategies and Accessibility Plans                             20

Chapter 12 – Resolving Claims of Discrimination                                                20

Chapter 13 – Other duties on Education and Library Boards                              21

Chapter 14 – Useful Contacts                                                                              21



Introduction

The Children’s Law Centre is an independent charitable organisation established in September 1997 which works towards a society where all children can participate, are valued, have their rights respected and guaranteed without discrimination and every child can achieve their full potential.
We offer training and research on children’s rights, we make submissions on law, policy and practice affecting children and young people and we run an advice/ information/ representation service. We have a dedicated free phone advice line for children and young people called CHALKY and a youth advisory group called Youth@clc.
Our organisation is founded on the principles enshrined 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 interests.
• Children have the right to have their voices heard in all matters concerning them.
From its perspective as an organisation, which works with and on behalf of children, both directly and indirectly, the Children's Law Centre is grateful for the opportunity to make this submission to the Equality Commission for Northern Ireland and to offer assistance and comment on the draft Code of Practice for Schools and the draft Code of Practice for Further and Higher Education.
General Comments
Kathryn Stevenson, Solicitor with the Children’s Law Centre, was an active member of the SENDO Consortium first 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 reconstituted in May 2004 to respond to the draft Order in Council. Kathryn also attended a focus group discussion on 19th April 2005, which was part of the Equality Commission for Northern Ireland’s public consultation on the SENDO Codes of Practice.

As a member organisation to the SENDO Consortium, the Children’s Law Centre contributed to the Equality Commission’s initial response to the consultation document in January 2003 and to its response to the draft Special Educational Needs and Disability Order in June 2004.

The Children’s Law Centre also submitted our own detailed response to the proposals contained within the Special Educational Needs and Disability Bill Consultation Document in early February 2003 and to the draft Order in June 2004.

Some of the key issues raised in our previous submissions have not been reflected in the finalised Special Educational Needs and Discrimination (Northern Ireland) Order 2005. For example, in the area of special educational needs, we advocated for the child to be afforded a separate right of appeal and participation in Special Educational Needs Tribunal proceedings; the powers of the tribunal to be extended to enforce its orders and to impose sanctions for non-compliance; and the introduction of new statutory time limits within the special educational needs and statementing process. The Children’s Law Centre does not intend to duplicate all of the arguments raised in our previous submissions to support these changes in the law relating to special educational needs, however we would request that some of the principles posed, particularly regarding time limits applicable to the assessment and statementing process, may be included as recommendations for best practice within the new Code of Practice for Schools. (See recommendations in relation to Chapter 3 of the Code of Practice, at paragraph 9, below).

Our response to the consultation on the draft Code of Practice for Schools will be focused on the effectiveness of the draft Code of Practice 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 of Human Rights (as incorporated into domestic law by the Human Rights Act 1998) and the United Nations Convention on the Rights of the Child are always ensured. We may also propose some amendments to the Code of Practice for consideration by the Equality Commission, with the aim of enhancing and protecting the rights of children and young people with special educational needs and/or disability in schools.

Given the detail and volume of the draft Code of Practice for Schools in its current form, the Children’s Law Centre would like to make a general recommendation that information about the introduction of SENDO and the Code of Practice for Schools be produced in a shortened format for easy accessibility for parents and also a child-friendly version for children and young people. We note from paragraph 14.1 of the Code that information is already available in other formats, including large print, Braille and audiotape.


Draft Code of Practice for Schools

Chapter 1 – Introduction

The Children’s Law Centre has the following comments to make in respect of Chapter One of the guidance:

1) In relation to the status and scope of the Code, it is stated at paragraph 1.16, that the Code applies to ‘all pupils and prospective pupils under sixteen years old who are disabled’. The Children’s Law Centre is of the view that all disabled pupils who are registered pupils at a school and intend to remain at the school until they complete their A-Levels would also be protected by the provisions contained within the Code.`

2) At paragraph 1.19 there is a table setting out schools duties in SENDO to include ‘Home teaching services for school age pupils’. Very often, in circumstances where a pupil with special educational needs and/or disability is excluded from school, the Board must make EOTAS provision (education other than at school) to meet the child’s educational needs. Particularly in circumstances where a child has a complex range of needs, the board will have to exercise its residual duty towards the child and take steps to ensure that the pupil receives an effective education for any period while the he or she is out of school. The Children’s Law Centre is concerned that the table in its current form does not reflect the Education and Library Board’s residual duty for school age pupils.


Chapter 2 – Definition of a disabled person- Who has rights under the Order?

The Children’s Law Centre has some concerns regarding the definition of ‘physical or mental impairment’ provided in paragraph 2.4 of the Code:

1) The term mental impairment is stated to include ‘learning disabilities’. CLC’s view is that further clarification is needed for parents and relevant professionals to understand the difference between ‘learning difficulties’ and ‘learning disabilities’’. Children with learning difficulties very often have a statement of educational needs, but when does a difficulty become a disability?

2) We understand from the definition of a ‘disabled person’ taken from the DDA 1995 (and provided in paragraph 2.3 of the Code), that a disabled person will have a physical or mental impairment, which has a substantial and long term adverse effect on his or her ability to carry out normal day-to-day activities. Given the amount of time that it normally takes for an educational psychologist to carry out an assessment and for the ELB to make a decision to finalise a statement, it is very likely that most children with a statement will also satisfy the criteria of having a long term effect of impairment.

3) The definition of ‘normal day to day activities’ (at paragraph 2.10) and the categories of capacity taken from Schedule 1 of the DDA are perhaps a little harder to interpret. For example, many children with learning difficulties, EBD, ADHD, ADD and Autistic spectrum disorders would have difficulties with ‘memory or ability to concentrate, learn or understand’ and may also have difficulties in ‘perception of the risk of danger’. Children with developmental disorders such as dyspraxia may have problems with mobility, manual dexterity and physical co-ordination, which are also categories under the DDA. The Children’s Law Centre recommends that examples of the types of condition which may come under each of these categories be provided in the final draft of the Code. We would also request that the Code of Practice include a recommendation that further guidance be issued by the Department of Education to clarify the definition of ‘disability’ under the DDA. This would make it easier for pupils, parents and professionals to identify when a pupil has a disability and should therefore be afforded the rights and protections under SENDO.

4) Is it relevant whether any assessment or diagnosis of a child’s needs is provided by an educational or a health professional, when considering the application of SENDO to meet the child’s needs? Perhaps the final Code could be prescriptive in this regard.

5) At paragraph 2.17, some conditions are specifically excluded from the definition of disability. The Children’s Law centre has some concerns about the express exclusion of children with a ‘tendency to physical or sexual abuse of other’. For example, a child with EBD or ADHD may make inappropriate sexualised remarks to adult teaching staff; and some children with autism or other complex special educational needs may show aggression towards school staff or other pupils. Does this mean that some of these children will be excluded from the protection afforded under SENDO?

6) At paragraphs 2.18 and 1.19 the Code indicates that children with statements of educational needs will not always be ‘disabled’ as they will not always satisfy the definition under the DDA 1995. Only children who fall within this definition of disabled will be afforded the protection against disability discrimination and unfavourable treatment provided under Part III of SENDO 2005. The relationship between special educational needs and disability is further explored in Chapter 3 of the Code at paragraphs 3.20 and 3.21. There are two distinct roles for education providers under the Special Educational Needs Framework, governed by the Education (Northern Ireland) Order 1996 and the disability discrimination duties under SENDO. However, there are many children who will require SEN provision to access education and will also satisfy the definition of disability under the DDA. These children should not be discriminated against on the grounds of their disability and should always benefit from the same educational opportunities as children without a disability. The Children’s Law Centre is concerned that there may be complications in interpreting the disability definition for children with learning difficulties and EBD and that any overlap in the need for provision/protection may not always be identified for each individual child.


Chapter 3 – Special Educational Needs

The Children’s Law Centre has the following comments to make in respect of Chapter three of the guidance:

1) At paragraph 3.1 the definition of special educational needs is a summary of the definition of ‘learning difficulty’ under Section 3 of the Education (Northern Ireland) Order 1996. We would recommend that it may also be useful to include examples of what may constitute a special educational need in the final Code.

2) Education in Mainstream Schools for Pupils with Special Educational Needs - Paragraph 3.9 refers to the new provision under Article 3 of SENDO, which is substituted for Article 7 of the 1996 Order:

a. In our previous submissions to the draft legislation, CLC argued 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 the mainstream, if it is their preference and the preference of the child.

b. Therefore, the Children’s Law Centre welcomes the removal of the ‘efficient use of resources’ clause, a previous requirement under Article 7(2)(b)(iii) of the 1996 Order, when placing a child in a mainstream school.

c. We also welcome the omission of the previous requirement under Article 7(2)(b)(i) that placement of a child in a mainstream school had to be compatible with the child ‘receiving the special educational provision which his learning difficulty calls for’ in the new legislation.

d. The Children’s Law Centre is pleased by the limitation of the incompatibility argument in respect of ‘the provision of efficient education for other children’. We note that there is a new duty upon the Board to ‘take all reasonable steps’ to prevent incompatibility. While we acknowledge that there is a balance to be made between educating children with SEN in ordinary schools and ensuring the effective education of all children in the school, CLC would argue that the onus is on the Board to make available suitable provision to ensure that the child with SEN and the other children with whom the child is educated receive an effective education. SENDO does not go far enough to make the new requirements compatible with Article 23 (UNCRC), which promotes social integration inclusion and active participation of children with disability in education.

e. SENDO states that further guidance shall be issued by the Department of Education for Boards and Boards of Governors, particularly on the issue of what ‘reasonable steps’ must be taken to ensure compatibility. CLC recommends that the Code of Practice for Schools should also include further guidance on this issue.

f. The emphasis is different in the new legislation as there is now a negative formulation of the duty, to educate a child with SEN in a mainstream school unless that is ‘incompatible’ with (a) the wishes of his parent or (b) the provision of efficient education for other children. There appears to be a new emphasis on meeting parental wishes regarding their child’s education. It is the Children’s Law Centre’s opinion that there should also be a statutory requirement to take into account the views of the child. To ensure compatibility of the new legislation with Article 12 of the UNCRC, we recommended that the proposed legislation be amended to place a statutory duty on the board to ascertain the child’s views and to give them due weight when deciding on the suitability of a mainstream placement for a child with special educational needs. CLC would recommend that the Code of Practice be amended to require the Board, as a matter of best practice, to consider the views of the child in all decisions affecting their education.

3) Advice and Information for Parents –With reference to paragraph 3.10, the Code of Practice should include a recommendation that it is good practice to communicate with children and young people about their special educational needs assessments and provision. CLC recommends that the Boards should publish child friendly information materials, as well as information materials for parents, in a variety of formats, to ensure compliance with Article 17 (UNCRC) (the right for children to access appropriate information and materials).

4) Dispute resolution – CLC strongly supports the new requirement on Boards to make arrangements for the appointment of an independent body to help parents to avoid or settle disputes regarding their child’s education. Any independent body set up under Article 5, Part II of the Order could provide a valuable conciliation and mediation service for parents, schools and Boards on disputes regarding special educational needs assessment and provision; to attempt to resolve issues where there is no right of appeal to the SENDIST; and to minimise the need for parents to take complaints before the SENDIST. This forum would be less adversarial than formal proceedings and could help to alleviate stress on parents and children caused by disputes with education authorities around SEN assessment and provision.

With reference to paragraph 3.11, CLC recommends that the service should be accessible to children with SEN as well as their parents. For compliance with Article 12 (UNCRC), the child’s voice should be heard and his or her views taken into account in all cases where they wish to be involved in the conciliation process. Child-friendly information materials should be produced, in accordance with Article 17(UNCRC), detailing the role of the conciliation service and the procedures to be followed. CLC requests that these recommendations be included as good practice within the Code of Practice for Schools.

In our previous submissions to the draft SENDO, the Children’s Law Centre highlighted the need for a review of special educational provision for children who were at stages 1-4 of the Code of Practice for Identification and Assessment of Special Educational Needs and therefore did not have a final statement of special educational needs. Key issues of concern for children within this group included:

• Funding and allocation of budgets in mainstream schools for non-statemented children;
• 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 on an annual basis;
• Introduction of a statutory obligation on the Education and Library Board’s to monitor school-based provision effectively;
• 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;
• Introduction of criteria for ‘exceptional provision’ to meet the needs of children with special educational needs under Article 86 of the Education (NI) Order 1996;
• 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;
• The need to quantify provision to be made for an individual child in a statement of special educational needs.

Although such concerns were not addressed by the introduction of new statutory duties under SENDO, the Children’s Law Centre recommends that many of these issues could be addressed by the independent conciliation service to be set up under Article 5, Part II of the new Order.

The Children’s Law Centre requests that the Code of Practice should include a recommendation that the conciliation 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.

With reference to paragraph 3.12 it is imperative that parents receive clear and concurrent advice on the SENDIST process and are aware of the two month time limit for making an application to the tribunal in relation to unresolved disputes. The Code of Practice should refer specifically to this issue.

5) What will be the relationship between dispute resolution services for special educational needs and disability discrimination?
We note from Article 42(8) of SENDO that the remit of the conciliation service to be set up by the Equality Commission is limited to disputes concerning allegations of discrimination or harassment. Equally, the service arranged by the Boards will be limited to SEN disputes. However, it is our strongly held view that the independent bodies responsible for providing each service should develop a joint protocol and clear mechanisms for referral between agencies to ensure that children with special educational needs and/or disability under the definition set out under the DDA 1995 can access the appropriate assistance and have their rights protected to the full extent of the law. It will be imperative that staff within each service have a full understanding of their respective roles and areas of responsibility and receive the necessary training to recognise the types of dispute that may be relevant for each body. The Code of Practice could also make a recommendation in relation to this joint working relationship.

6) Parents right of appeal – CLC welcomes the extension of appeal rights to include a specific right of appeal against the school named in Part 4 of the statement.

We also recommended in our submission to the draft SENDO legislation that the law be changed be to allow children, as rights bearers, a separate right of appeal to the SENDIST. In neither SENDO nor the Education (NI) Order 1996 is there any reference to the participation of the child in tribunal proceedings.

The Children’s Law Centre welcomes inclusion in the Code of Practice of a separate right of appeal for children and young people to SENDIST in cases where there is a complaint of unlawful discrimination (See paragraph 12.9 of the Code). It is regrettable that this right is not afforded statutory footing under the provisions of SENDO.

CLC would argue for the same approach to be taken in relation to appeals concerning children’s special educational needs assessments, statements and provision. CLC requests that the Code of Practice be amended to include a specific reference to the child’s right to participate in appeal proceedings (in accordance with Article 12 (UNCRC)), at paragraph 3.13 and 3.14 of the Code.

In relation to unopposed appeals, the Code of Practice should also include a recommendation that prescribed time limits be set by the SENDIST for compliance with the parents request by the Board and/or school following determination of an appeal.


7) Informing parents that special educational needs assistance is needed - The Children’s Law Centre strongly supports this new statutory duty upon schools to inform parents of any special educational needs provision being made for their child. However, it is our view that the Code of Practice should go further than this. The Code should include (at paragraph 3.15) best practice guidance for 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. Guidance could also be given to assist school staff and parents in explaining the need for special educational provision to the child and ascertaining the child’s views in respect of any provision proposed. The child should be an active participant in any decisions made.

8) Assessment of special educational needs – CLC welcomes this new provision under SENDO which affords parents a statutory right of appeal to the SENDIST in circumstances where the ‘responsible body’ for the school has made the initial request to the Board for assessment of a child’s needs. CLC recommends that the new statutory right be extended to afford the child as well as his or her parents a separate right of appeal to the SENDIST. At paragraph 3.19, the Code of Practice should make reference to the child’s right under Article 12(UNCRC) to be involved in any appeal process concerning their education.

9) Additional Children’s Law Centre recommendations for incorporation into the Code of Practice – The Children’s Law Centre made a number of recommendations in relation to the incorporation of statutory time limits into new SENDO legislation, in our response to draft legislation. We now request that some of these recommendations be incorporated, as best practice guidance, into the Code of Practice:

a. 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), Education (NI) Order 1996 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 of their decision to parents. This time limit should run from the date of receipt of the request for a statutory assessment by the Board.

b. 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) of the Education (NI) Order 1996 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 for Identification and Assessment of Special Educational Needs 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 SENDIST. Accordingly, CLC recommends that the new Code of Practice for Schools includes new requirement for 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.

c. 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.

d. 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 requests that Code of Practice be amended to include recommendations for such a time limit.


Chapter 4 – Overview of Disability Discrimination under SENDO

The Children’s Law Centre has the following general comments to make in respect of Chapter four of the guidance:

1) At paragraph 4.7, where the Code states ’Many changes will need to be made independently of any knowledge of individual pupil’ and particular disabilities’, CLC recommends that reference be made to the anticipatory nature of the duty placed on the responsible body to make reasonable adjustments within this paragraph. It should be made clear from the outset in this guidance that the onus is on the school to anticipate the needs of pupils and to create an environment where pupils feel secure in disclosing any disability that they may have. Also, at paragraph 6.3 of the Code it is clearly stated that the duty to make reasonable adjustments is ‘an anticipatory, necessary, evolving and continuous duty’.

2) In relation to paragraph 4.8, CLC views that there should be some reference in this paragraph to the right of parents and pupils to make a confidentiality request in relation to any disclosure of disability. Furthermore, given the relationship between disclosure and protection from discrimination and the corresponding duty to respect a child’s right to privacy regarding their disability, perhaps this guidance should be set in the wider context of the pupils right to privacy as afforded under Article 8 of the European Convention of Human Rights.

3) The Code should also take cognisance of the fact that there are some circumstances where a child and/or parents are not aware of the disability; have not 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. 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 Code of Practice should provide further guidance for schools clarifying this new duty under SENDO, where no disclosure of disability is made.

4) At paragraph 4.30, there is a list of duties and services for which the Board is responsible. We appreciate that this is not an exhaustive list; however, we feel that it is important to include the provision of home tuition and education other than at school (EOTAS) provision in circumstances where a child is excluded from school whether that be on a temporary or permanent basis.

5) With reference to the education provider’s legal responsibility for the actions of people working in schools (contained within SENDO Part III, Chapter III, Article 45) we have the following comments to make:

a. At paragraph 4.40, CLC views that in order to rely on the defence that reasonable steps to prevent disability discrimination have been taken, the responsible body of a school should ensure that its staff access relevant professional training in this area. For example, such training may be provided under the Board’s CASS programme. We request that the Code be amended to include this requirement.

b. This section also recommends that to rely on this defence, the school must be in a position to show that it has clear policies on disability matters and that these are communicated to employees of the school and anyone working with the authority of the school. CLC would further recommend that pupils with disability and their parents should be consulted in the development and review of any such policies and any written policies should be made available to parents and pupils upon request. We would recommend that the Code of Practice make reference to the importance of such consultation and transparency in relation to developing school policy.

c. With reference to paragraphs 4.41 and 4.42, CLC requests that the Code should specify that the school’s internal complaints procedure should be in writing and be made available to pupils with disability and their parents upon request. The complaints procedure should detail procedures for investigation and process of a complaint and potential outcomes where a complaint is upheld.

d. In Example 3, the Principal’s actions to the complaint are clearly documented in respect of the formal complaint procedures. However, we feel that it would also be useful to include in this example details of what immediate action should have been taken by the Principal to resolve the discrimination taking place. i.e. to make the staff toilet more accessible to the pupil in the interim.


Chapter 5 – Less Favourable Treatment

1) Paragraph 5.4 deals with justification for less favourable treatment where a grant-aided school applies its normal admission criteria under Article 16 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 maintains our view that this exemption should not apply in circumstances where a school’s admissions criteria could be discriminatory in relation to children with disabilities, for example, where school attendance records, attendance at a particular feeder primary school or achievements in extra-curricular activities that may not have been easily accessible for a child with a disability are taken account of by post-primary schools in reaching decisions regarding admissions to the school.

2) Examples of Less Favourable Treatment provided in the Code of Practice – The case studies contained within the Code under this section are very helpful in promoting an understanding of when less favourable treatment may or may not be justifiable under SENDO. We have some general comments to make in relation to the examples given, as follows:

a. Examples 6, 7, 11, 13 and 14 may also be considered in the wider context of Article 23 UNCRC. This Article of the Convention affords a disabled child the right to special care, education and training to help him or her to enjoy a full and decent life in dignity and achieve the highest degree of self reliance and social integration possible. The Children’s Law Centre requests that the Code of Practice should make particular reference to Article 23 of the Convention and the State’s duty to ensure that children with disability are fully socially integrated in the education that they receive.

b. With reference to Example 8, there is a factual inaccuracy in the scenario posed. Children with dyslexia are not afforded extra time in the 11+ examination. In the Northern Ireland case of Joseph Newton (a Minor) [2001]NI 115, a judicial review was taken against the Minister of Education (at that time) challenging his refusal to allow a dyslexic child extra time to sit the 11+ examination. This challenge was unsuccessful on the basis that the 11+ was a ‘competition’. The DDA did not apply to education at that time. The Children’s Law Centre recommends that the Equality Commission should revise this example taking account of the judgement in this case.

c. At Example 14, we would suggest that there are some further considerations which may be factored into the case study. For example, it may be relevant whether alternative like-activities were available to the group, which would have been fully inclusive in nature. Article 23(UNCRC) may be considered in this context.



Chapter 6 – Reasonable Adjustments

Similarly to Chapter 5, the case studies contained within the Code under this section are very useful in developing an understanding of what reasonable adjustments are and when they should be made. We have some general comments to make in relation to this chapter and the examples given, as follows:

1) At paragraph 6.8, the schools complaints procedures are mentioned as a tool to resolve disputes and mitigate claims of discrimination. CLC would further recommend that pupils with disability and their parents should be consulted in the development and review of any such policies and any written policies should be made available to parents and pupils upon request. We would recommend that the Code of Practice make reference to the importance of such consultation and transparency in relation to developing school policy.

2) In Example 22, the importance of schools collaborating with parents and other professionals is highlighted. CLC views collaboration between pupils, parents and the education and health sectors, as crucial to ensure that appropriate provision and is available for many children with disabilities in schools and that arrangements may be made for any necessary medical treatment to be administered throughout the school day and/or travelling to and from school. We welcome the Code of Practice highlighting this issue.

3) In relation to paragraph 6.15 we would make the same comments as we have previously made in respect of paragraphs 4.7 and 4.8 of the guidance (see page 11above) in relation to the anticipatory nature of the duty upon the school, ‘confidentiality requests’ and the wider context of the child’s right to privacy under Article 8(ECHR).

4) With reference to Example 28, it may also have been useful to illustrate the actions that the Principal should have taken in relation to the bullying. This would include his duty to fully investigate the allegations in accordance with the anti-bullying policy; to inform the parents of all of the children concerned; and to set up support mechanisms for the individual child to mitigate the likelihood of any further bullying and to assist her in reporting any further incidents of bullying to a member of staff.

5) At paragraph 6.18, insert the word not. i.e. ‘does not require the responsible body to..’

6) At paragraph 6.21 the Code refers to guidance on accessibility plans and strategies, for schools and Education and Library Boards, which is available from the Department of Education. Did the Department of Education consult with the public in relation to the content of this guidance?

7) With reference to paragraph 6.22, CLC is disappointed with this exception to auxiliary aids and services in the new legislation. We viewed this new legislation as a valuable opportunity to tighten up procedures and eradicate unreasonable delay in assessment, statementing and provision for children with special educational needs and/or disability in education. However, given commentary in the Code of Practice on this issue we feel that it is important to note that some auxiliary aids and services are provided without going through the statementing process and interim provision may also be provided to a school by the Board on an emergency application (under Article 86, Education (NI) Order 1996) or from the school’s own budget.

8) In paragraph 6.26 it is stated that the Order requires disabled pupils to be included in every aspect of school life. Again the wider international standards of Article 23 (UNCRC) apply and should be referenced in the Code.

9) Paragraph 6.27 sets out the matters that may need to be taken into account in deciding whether a step is reasonable or not. CLC has the following comments to make regarding this section:

a. In relation to points 2 and 3, CLC views financial resources available to the responsible body and the cost of taking a particular step should be omitted. Discrimination should not be subject to a resources argument. This argument is backed up by the amendments made under SENDO to Article 7 of the Education (NI) Order 1996 in respect of integration of children with SEN in mainstream schools. Here the efficient use of resources argument has been repealed under the new legislation. CLC argues that the same principles should apply to disability discrimination.

b. The issue of timescales for taking reasonable steps should also be considered. In some circumstances steps may need to be taken immediately to avoid discrimination against a disabled pupil.

c. At point 5, there is reference to assistance provided under a statement of special educational needs. For completeness, reference should also be made to any interim provision which may be sought by a school from the ELB via an emergency application under Article 86 of the 1996 Order and/or any support which may be provided for the pupil from the schools own budget.

10) The resources argument is raised again at paragraph 6.30, where the Code states that the responsible body may make certain adjustments rather than others on the grounds of the cost. CLC repeats the argument raised at 9)(a) above i.e. the child’s right to be protected from disability discrimination should not be subject to resources available.

11) In Example 32, there is no reference to the Principal taking steps to liaise with the French organisers to find an alternative host. It may be assumed that this was a reasonable step which would be taken by the school in the given circumstances.



Chapter 7 – Victimisation

CLC has no comments to make in respect of this section. The examples are very clear in setting out what may or may not constitute victimisation of a person under Article 37 of SENDO.


Chapter 8 – Lack of Knowledge Defence

The Children’s Law Centre has the following general comments to make in respect of Chapter four of the guidance:

1) Anticipatory Duty – Paragraph 8.3 refers to the schools duty to amend policies and prepare plans of action. CLC requests that the Code should specifically state that these policies and plans of action should be made available, upon request, to any prospective pupils and their parents; and pupils at the school and their parents, in the event of a claim that discrimination has occurred.

2) When Lack of Knowledge is not a Defence – At paragraph 8.4, CLC requests that the Code make reference to the parents and/or pupils right to make a ‘confidentiality request’ in relation to a disclosure of disability.

6) With reference to paragraph 8.6, 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 Code of Practice should provide further guidance for schools clarifying this new duty under SENDO, where no disclosure of disability is made.

3) Paragraph 8.9 refers to the responsible body’s liability for the actions and indeed inaction of their staff, in handling complaints of disability discrimination. Given the nature of this responsibility, CLC would suggest that the Code recommend that all schools should have procedures for recording information given, decisions taken (with reasons) and any actions taken to prevent discrimination against a disabled pupil.


Chapter 9 – Confidentiality

We have raised the issue of confidentiality frequently throughout this submission. It is a matter of great significance, for the implementation of SENDO, given the fine balance which has to be weighed up by a pupil and/or his or her parents between deciding whether to disclose a pupil’s disability in order to ensure that a school may take specific steps to meet the pupil’s individual needs and protecting the child’s right to privacy as provided under Article 8 (ECHR).
We have the following general comments to make in respect of this chapter:

1) At paragraph 9.4, CLC requests that particular reference be made the child’s right to be heard and to have his or her views taken into account in decisions effecting their education, as provided under Article 12 (UNCRC).

2) Following on from the above, in paragraph 9.6 the Code should expressly recommend that schools should involve pupils and their parents in consultation around the reasonable steps to be taken to prevent discrimination and any implications or limitations that a confidentiality request may have on the steps to be taken by the school. This is particularly important when we consider the content of paragraphs 9.8 and 9.9 of the Code.

3) At paragraph 9.7, we would request that the Code specify that the Confidentiality Policy be made available to pupils and parents by the school.

4) Given the crucial aspect of consultation between pupils, parents and the school in agreeing, monitoring and reviewing the reasonable steps to be taken by the school and to mitigate any future complaints, we would request that Example 38 be amended, to include reference to any discussion between the Principal and parents regarding the implications or limitations that a confidentiality request may have had on the steps to be taken by the school.



Chapter 10 – Good Practice for Inclusive Education

This chapter of the code sets out very clear practical guidance for schools to assist them in discharging the new duties and responsibilities introduced under SENDO.

The Children’s Law Centre recommends that this chapter be moved to the start of the Code and would naturally follow Chapter 1, which provides an introduction to the legislation.

We have the following general comments to make in respect of the content of this chapter:

1) The Rights of the Child or Young Person – The Children’s Law Centre welcomes this section which places domestic legislation and the guidance contained within the Code of Practice in a wider context of international law and convention rights under the European Convention of Human Rights, the Human Rights Act 1998 and the United Nations Convention on the Rights of the Child. We have highlighted the need to make reference to specific convention rights throughout the Code of practice within this submission document. Again, we would request that specific convention rights be referred to within this section.

Referring to the existing text in paragraph 10.8, the rights of disabled pupils may be specified as follows:

• an opinion on decisions affecting them (Article 12, UNCRC)
• be involved in the decisions affecting them and have their opinions taken into account (Article 12, UNCRC)
• information (Article 17, UNCRC)
• meet together with their peers (Article 11, ECHR)
• an education which develops their personality and talents to the full (Article 23, UNCRC; Article 2, Protocol 1 ECHR)
• privacy (Article 8, ECHR)

The Children’s Law Centre recommends that the Code of Practice should be set within the context of all of the Articles of UNCRC and the ECHR which may be relevant to the provision of education and to providing a safe and secure educational environment which respects and protects the rights of children with special educational needs and/or disability. CLC summarises these rights as follows:

United Nations Convention on the Rights of the Child

• Article 2: Non – discrimination
• Article 3: Best Interests of the Child
• Article 12: Participation
• Article 23: The rights of children with a disability
• Article 28: Right to Education
• Article 29: Aims of Education
• Article 42: Knowledge of Convention Rights

European Convention on the Rights of the Child

• Article 2, Protocol 1: Right to Education
• Article 2: Right to Life
• Article 3:Prohibition of Torture
• Article 6: Right to a Fair Trial
• Article 8: The Right to Respect for Private and Family Life
• Article 9: The Right to Freedom of Thought, Conscience and Religion
• Article 10: Freedom of Expression
• Article 11: Freedom of Assembly and Association
• Article 14: Prohibition of Discrimination


We would also recommend that the text of the relevant convention rights be documented in full and that an ‘Overview of International Human Rights Protection’ be included as an appendix to the Code of Practice. (CLC produced a similar document as an introductory section in our manual entitled ‘Human Rights Awareness for Schools’, which was published by the Department of Education).

Paragraph 10.8 should refer to the UNCRC, the ECHR and the Human Rights Act 1998, rather than just the ECHR.

2) There is a typo-graphical error at paragraph 10.15. ‘Principle’ should be substituted for principal.

3) Implement Inclusive Policies Procedures and Practices - Paragraphs 10.25 – 10.27 recommends that a school develop and implement an inclusion policy which specifically covers disability. The Code also recommends that the effectiveness of the policy be regularly monitored by consulting with disabled pupils. CLC welcomes active participation of pupils with disability in policy review procedures. We would also suggest that the Code be amended to include a requirement that pupils with disability be involved in the initial policy development. Furthermore, written procedures for consultation, monitoring and review of internal school policies should be accessible to pupils and their parents.

4) We would make exactly the same comments in relation to the development, monitoring and review of a schools anti-bullying policy and procedure (see paragraphs 10.28 -10.31) and confidentiality policy (see paragraphs 10.32-10.34). There is a specific duty to consult with registered pupils at a school and their parents when developing an anti-bullying policy, under Article 19 of the Education and Libraries (NI) Order 2003.

5) At paragraph 10.33 we would request that specific reference be made to the pupil’s right to privacy under Article 8 (ECHR).

6) Provide Training and Guidance – Reference is made to the need for staff training on SENDO, the Code of Practice and school disability policies at paragraphs 10.46 and 10.52-10.55 of the Code. CLC requests that clarification be given in the Code of Practice as to who should provide the necessary training and who is responsible for funding and ensuring that the training takes place. i.e. Department of Education, Boards or schools? For example, should it be provided by the Board’s Curriculum and Advisory Support Services (CASS); NGO’s from the voluntary or community sector; or the Independent Conciliation Body to be set up by the Equality Commission?



Chapter 11 – Accessibility Strategies and Accessibility Plans

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 disabilities. However, we maintain all of the concerns previously detailed in our submission to the draft legislation, due to the omission of clear timescales, regulatory procedures and funding arrangements under the proposed legislation or this draft Code of Practice for Schools.

We note that regulations shall be drafted prescribing the period to be covered by the plan and arrangements for review. We also note that the Department of Education shall be producing guidance for Boards and schools on accessibility planning. We shall make enquiries to the Department of Education in relation to these matters.



Chapter 12 – Resolving Claims of Discrimination

1) Conciliation – CLC requests that paragraph 12.5 be amended to clarify the fact that pupils and/or parents are not required by law to enter into the conciliation process. They have a right to proceed directly to the SENDIST to make a complaint of unlawful discrimination.

2) At Paragraph 12.6, we would also request that the Code of Practice recommend that it is part of the role of the Independent Conciliation Service to advise pupils and/or their parents of time limits applicable to their right of appeal to SENDIST.

3) Who may take Legal Action? – The Children’s Law Centre welcomes the inclusion in the Code of Practice of a separate right of appeal for children and young people to the SENDIST, in connection with complaints of unlawful disability discrimination. (See paragraph 12.9 of the Code). It is regrettable that this right is not afforded statutory footing under the provisions of SENDO.

CLC would argue for the same approach to be taken in relation to appeals to SENDIST concerning children’s special educational needs assessments, statementing and provision. The Code of Practice for Identification and Assessment of Special Educational Needs would need to be revised to afford children and young people separate rights of appeal.

CLC would recommend that SENDO and the 1996 Order be amended to place children’s rights of appeal on a clear statutory footing. This would ensure that our domestic legislation is in compliance with Article 12 (UNCRC).

4) Article 101 Appeals to the Department of Education - At paragraph 12.19, the guidance states that where a responsible body fails to meet any deadline prescribed in a SENDIST Order, a person may appeal to the Department of Education requesting that they make a direction against the responsible body.

CLC requests that the powers of the Department of Education to give directions (under Article 101 of the Education and Libraries (NI) Order 1986, as substituted by Article 158 of the Education Reform (NI) Order 1989) should be very clearly set out in this section of the Code of Practice.

It is important to note that there are no statutory time limits applicable to the Department of Education’s replies to this request. However, there is a strict time limit of three months (at the very latest) from the date of decision, to lodge an application in the High Court for leave for a judicial review.

The Children’s Law Centre recommends that a time limit of 14 days be included under the final Code of Practice for Schools.


5) Judicial Review

If a complainant wishes to appeal against a decision of the SENDIST, the Code of Practice should advise a complainant to take legal advice as soon as possible after the tribunal hearing, on his or her rights of appeal to the High Court, by way of judicial review.

and
If the complainant wishes to appeal against the decision of the Department of Education following an Article 101 complaint; or if the school or Board do not comply with an Article 101 direction from the Department of Education, there may be grounds for an appeal to the High Court, by way of judicial review.

CLC recommends that the Code of Practice should provide clear information in relation to a pupil’s right to seek legal advice in relation to issuing judicial review proceedings.


Chapter 13 – Other Duties on Education and Library Boards

CLC has just one general comment to make in respect of this chapter, as follows:

1) At paragraph 13.3, we would request that the services to pupils should specifically include special educational needs provision under the Education (NI) Order 1996 and school transport provision.


Chapter 14 – Useful Contacts

Finally, CLC requests that the contact details provided at page 100 of the Code be amended, to include the telephone number for CHALKY (our free phone advice line).

The CHALKY Free phone number is 0808 808 5678



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