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Response
to the Department of Education’s consultation on the
Draft Supplementary Guidance to support the Impact of SENDO
on the Code of Practice on the Identification and Assessment
of Special Educational Needs
Children’s Law Centre
June 2005
Contents
Introduction
3
General Comments
3
Section 1: Introduction
5
Section 2: Summary of the New SEN Provisions
7
Section 3: Disability Discrimination in Education
7
Section 4: Guidance about the SEN Provisions of SENDO
8
1) Deciding where a child with a statement is educated
8
2) Parental preference for a particular school
9
3) Parents request an Independent School
10
4) Deciding where children without a statement are
educated
10
5) Advice and Information for Parents
11
6) Resolution of Disputes
12
7) Appeal against the content of a statement
14
8) Unopposed Appeals
14
9) Duty to inform parent of SEN provision
14
10) Assessment of SEN
15
11) Statements of SEN
15
12) Additional CLC Recommendations
15
Section 5: Inclusion of Children with SEN
17
1) Introduction
17
2) Developing Effective Inclusion
17
3) Safeguarding pupils with SEN
17
4) Efficient Education of Other Children
18
5) Reasonable Steps
18
6) Instances where it may not be possible to include
18
specific children
7) Independent Schools
18
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. Furthermore, we
have recently submitted a 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.
Some of the key issues raised in our previous submissions
have not been reflected in the 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 Department of Education’s Supplementary Guidance
to Support the Impact of SENDO on the Code of Practice on
the Identification and Assessment of Special Educational Needs
(hereafter referred to as the Guidance).
The Children’s Law Centre is grateful for this opportunity
to respond to the draft Guidance. Our response will be focused
on the effectiveness of the Guidance 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 have also proposed some amendments
to the Guidance 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 and/or disability
in schools.
Given the detail and volume of the Guidance in its current
form, the Children’s Law Centre would like to make a
general recommendation that information about the introduction
of SENDO and its impact on the Code of Practice on the Identification
and Assessment of Special Educational Needs (hereafter referred
to as the Code of Practice) be produced in a shortened format
for easy accessibility for parents and also a child-friendly
version for children and young people.
We note that the Draft Code of Practice for Schools (issued
in accordance with SENDO) is already available for the Equality
Commission in other formats, including large print, Braille
and audiotape. Accordingly, we would request that the same
approach be taken by the Department of Education to ensure
that this Guidance is accessible to all.
Draft Supplementary Guidance to Support the Impact of SENDO
on the Code of Practice on the Identification and Assessment
of Special Educational Needs
Section 1: Introduction
The Children’s Law Centre has the following comments
to make in respect of Section 1 of the Guidance:
1) Status of the Guidance - At paragraph 1.3, the Guidance
correctly states that schools, Education and Library Boards
and the new SENDIST are placed under a statutory duty, by
Article 4 of the 1996 Order, to have regard to the Code of
Practice and this Guidance. It then goes on to say: ‘Both
the Code of Practice and this Guidance are designed to help
make effective decisions but do not and could not tell schools,
Boards and others what to do in the specific and individual
circumstances they encounter’.
The Children’s Law Centre views this as a very negative
introductory paragraph, which immediately sets a negative
tone in relation to the Guidance, repudiates the authority
and validity of its status and even presents to the educational
sector that there will be specific and individual circumstances
where they may be justified in deviating from the recommendations
contained in the Guidance. While it is accepted that the recommendations
provided in the Guidance are not legally binding as they are
not endorsed by statute, there is a clear statutory duty to
have regard to the Guidance in any decisions made regarding
the education of a child with special educational needs or
with a disability, as defined under SENDO.
In the Code of Practice, the status of the Code is detailed
in Paragraph 1.2. The wording in relation to the statutory
duty to have regard to the Code is almost identical and the
paragraph continues as follows: ‘In the case of schools,
the Education and Training Inspectorate will, consider, in
the context of their inspections, the effectiveness of the
school’s policies and practices and the extent to which
schools have had regard to the Code’.
The Children’s Law Centre requests that paragraph 1.3
be amended to reflect the status of the Guidance in a more
positive context. We would be happy if the paragraph was amended
in similar terms to the wording of the Code of Practice, which
remains ‘unchanged by this Guidance’ (See paragraph
1.2 of the guidance).
2) At paragraph 1.4, we would request that specific reference
be made to Article 3(2) of the Education (Northern Ireland)
Order 1996, which sets out the definition of a ‘learning
difficulty’, referred to in the Guidance. Also at the
end of point two, we would recommend the insertion of the
word ‘or’, as contained in Article 3(2) of the1996
Order.
3) At paragraph 1.5, we would request that specific reference
be made to Article 3(4) of the 1996 Order, which sets out
the definition of ‘special educational provision’
referred to in the Guidance.
4) Informing parents that special educational needs assistance
is needed - The Children’s Law Centre strongly supports
the new statutory duty upon schools, introduced by Article
9 of SENDO, to inform parents of any special educational needs
provision being made for their child. However, it is our view
that the Guidance should go further than this. The Guidance
should include (at paragraph 1.15) best practice guidance
for schools including advice for school 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.
5) With reference to paragraph 1.17, at point two, we would
request that the recommendations in paragraph 2.26 be specified
in this Guidance, for easy reference, as follows:
‘This information should be available on tape, or provided
in personal interviews, for parents who may have literacy
or communication difficulties. It should be borne in mind
that interpreters can be provided for parental interviews
by certain organisations (e.g. the Royal National Institute
for the Deaf and the Chinese Welfare Association), and that
their costs will be met centrally by the Board’. (Paragraph
2.26)
6) The Children’s Law Centre is of the view that this
Guidance should also recommend that 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).
7) Views of the Child- With reference to paragraph 1.18 of
the Guidance, CLC again requests that all the specific references
to ‘involving the child’ contained within the
Code of Practice should be set out clearly in this Guidance,
for simple reference by schools, Boards and the SENDIST. CLC
also requests that specific reference be made to the text
of Article 12 (UNCRC) and Article 17(UNCRC) in this section
of the Guidance.
Leading on from paragraph 4 above, Guidance could also recommend
that schools develop policy and procedures to assist school
staff and support 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 Children’s
Law Centre is of the view that this Guidance should include
a clear recommendation that the child should be an active
participant in any decisions made about their special educational
needs assessments and provision, in accordance with Article
12(UNCRC).
CLC acknowledges that it may not always be easy to ascertain
the views of a child, particularly in the examples given in
the Guidance i.e. a very young child or a child with severe
communication difficulties. However, there is a duty to ensure
that the child’s right under Article 12(UNCRC) is protected,
where the child wishes to participate. The onus is on schools,
Boards and any relevant health professionals to take all reasonable
steps to facilitate the child’s participation in any
decision regarding their education, even in circumstances
where this may present a challenge, at first.
Section 2: Summary of the New SEN Provisions
1) The Children’s Law Centre requests that the new SEN
provisions outlined in paragraph 2.3 should be amended to
make reference to the following additional rights of appeal
for parents to the SENDIST:
• allow parents to appeal to the Tribunal against the
school named in Part 4 of the statement;
• in the case of unopposed appeals to the Tribunal,
as outlined under Article 8, Part II of SENDO, an appeal is
treated as having been determined in favour of the appellant
and remedies should be delivered by the Board within a prescribed
period as set by the Tribunal.
2) Also, this section should make reference to the amendment
to Article 16 of the 1996 Order, under Article 11, Part II
of SENDO, which provides that there is no requirement to name
a school or institution in the statement in circumstances
where a child’s parent has made suitable arrangements
for the special educational provision specified in the statement
to be made for the child.
Section 3: Disability Discrimination in Education
The Children’s Law Centre recommends that in this section,
the Guidance should also outline the extended powers and jurisdiction
of the SENDIST, as follows:
• to hear appeals in connection with a claim that that
a responsible body has unlawfully discriminated against a
pupil or prospective pupil on the grounds of their disability
a) in the arrangements it makes for determining admission
to the school as a pupil;
b) in the terms on which it offers to admit him or her to
the school as a pupil; or
c) by refusing or deliberately omitting to accept an application
for his or her admission to the school as a pupil;
d) in the education or associated services provided for, or
offered to, pupils at the school by that body.
• SENDIST could potentially hear a complaint in respect
of the responsible body’s failure to make special educational
needs provision and a complaint of unlawful disability discrimination
at the same time.
• Claims of discrimination in relation to expulsions
from grant-aided schools cannot be made to the SENDIST. Such
claims will be made through expulsion appeals tribunals/panels
convened by the Board. SENDIST will however hear claims of
discrimination in relation to expulsions from non grant-aided
schools.
• SENDIST will also hear claims of discrimination in
relation to suspensions from all schools because suspensions
are not covered in the existing appeal arrangements.
Section 4: Guidance about the SEN Provisions of SENDO
The Children’s Law Centre has the following comments
to make in respect of Section 4 of the Guidance:
1) Deciding where a child with a statement is educated –
The General Duty – Education in Mainstream Schools for
Pupils with Special Educational Needs
Paragraph 4.5 of the Guidance refers to the new provision
under Article 3 of SENDO, which is substituted for Article
7 of the 1996 Order:
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.
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.
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.
With reference to paragraph 4.7 of the Guidance, 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 and the Guidance recommends that
clear evidence must be provided by the Board to justify why
no reasonable steps can be taken. 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 resources and provision
to ensure that the child with SEN and the other children with
whom the child is educated receive an effective education.
CLC is of the view that Article 3 of SENDO may not go far
enough to make the new requirements upon the Board compatible
with Article 23 (UNCRC), which promotes social integration
inclusion and active participation of children with disability
in education.
We also note that the Guidance aims to set out the factors
to be considered in identifying ‘reasonable steps’
and generic steps which the school and Boards may wish to
consider and provides some case studies to illustrate this
duty. We will comment further on this issue later in this
submission.
The emphasis is different in the new legislation as there
is now a negative formulation of the duty, under Article 3,
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 in
our previous submissions that the draft 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. Paragraph 4.9 of the Guidance states that ‘It
is important that the views of the child are sought and taken
into account’. CLC requests that the Guidance be amended
to include specific reference to Article 12 (UNCRC) and requires
the Board, as a matter of good practice, to consider the views
of the child in all decisions affecting their education.
2) Parental preference for a particular grant-aided (mainstream
or special) school to be named on the child’s statement
– Paragraph 4.10 sets out the criteria contained within
section 5(3) of Schedule 1 of SENDO. The schedule states that
the Board will specify the school of preference unless-
(a) the school is unsuitable to the child’s age, ability,
aptitude or special educational needs; or
(b) the child’s attendance at the school would be incompatible
with the efficient education of other pupils with whom he
would be educated or the efficient use of resources.
These same criteria apply in circumstances where parents request
a change of the school named on the child’s statement,
under Section 11(2) of Schedule 1.
In CLC’s previous submission to draft SENDO, CLC recommended
that Section 5(3) of Schedule 1 should also be amended to
reflect the changes then proposed, to substitute Article 3
of SENDO for Article 7 of the 1996 Order.
The criteria in Article 7 of the 1996 Order have since been
substituted by the new criteria in Article 3 of SENDO, thereby
placing a broader duty on the Board to educate children with
special educational needs in mainstream schools.
CLC recommended the removal of the latter criteria contained
within 5(3)(b) of Schedule 1. We maintain our view in relation
to this section of the legislation.
While Article 3 of SENDO places a stronger duty upon the Board
to educate a child with special educational needs in mainstream
education, parental choice is limited as before when it comes
to naming a particular mainstream or special school. The incompatibility
criteria which the Board may seek to rely upon to justify
refusing a parents request, are exactly the same as those
contained within Article 7 of the 1996 Order. CLC views that
the onus should be on the Board to make available suitable
resources and provision to ensure that the child with SEN
and the other children with whom the child is educated receive
an effective education and the Board should ‘take all
reasonable steps’ to prevent any incompatibility within
the school of parental preference.
Also, for compliance with Article 12(UNCRC), the Board should
take all reasonable steps to ensure that the child’s
views are heard and taken into consideration, when making
any decisions regarding an educational placement. The Guidance
should make specific reference to the Board’s duty under
Article 12.
3) Parents make representations for an Independent Special
School- (Paragraph 4.22 refers). In some circumstances, there
may be no suitable provision available for a child in a grant-aided
school in Northern Ireland and specialist provision may be
necessary to meet the child’s needs in a residential
placement outside the jurisdiction. In such circumstances,
the child’s right to an effective education must be
protected and should not be subject to a resources based argument.
4) Deciding where children who do not have a statement are
educated – Paragraph 4.23 sets out principles of fairness
regarding applications for admission to mainstream schools
by children with special educational needs who do not have
a statement. The Guidance states that such pupils must be
treated as fairly as other applicants; schools should apply
their published admissions criteria under the normal admissions
procedures; and schools should not refuse admission on the
grounds that they cannot meet the child’s SEN or that
they are undergoing a statutory assessment.
Article 15(6) of SENDO provides a statutory justification
for less favourable treatment of a child with a disability
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 the
exemption under Article 15(6) of SENDO 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.
The Children’s Law Centre is of the view that there
may be some discrepancy in relation to the application of
a schools admissions criteria and procedures when considering
a child with SEN and without a statement of special educational
needs; and a child with a disability. It would appear that
less protection is afforded to children with a disability,
due to the exemption under Article 15(6) of SENDO. When we
consider that many children with SEN will also satisfy the
definition of disability provided under the DDA, it is difficult
to see how their admissions applications will be processed
by schools. CLC requests clarification of this issue in the
final Guidance issued by the Department of Education.
5) Advice and Information for Parents - With reference to
paragraph 4.28, the Guidance 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). Publication
of child-friendly information will assist children to express
their views in accordance with Article 12 (UNCRC) and make
appropriate and informed decisions regarding their educational
options.
At Paragraph 4.32, the Guidance recommends that Boards should
seek to encourage schools to make parents aware of the Advice
and Information Services. CLC further recommends that Boards
should disseminate information posters and pamphlets for display
in schools.
Paragraph 4.33 sets out the minimum standards for service
delivery. CLC has the following additional comments to make:
• It is essential that the service is adequately resourced
to meet demand. Funding will require regular monitoring and
review to ensure that the service can meet parents and pupils
needs.
• The Guidance requires Boards to ensure that both the
Advice and Information Service and DARS are flexible and responsive
to local needs. CLC recognises that for some families there
may be barriers in relation to accessibility to the service,
particularly in more rural areas; were parents have a disability;
have dependents; or where there are financial constraints
for parents on low income to travel to the service. CLC requests
that a FREE PHONE Advice and Information Line be introduced
by the Board as part of the service. This may encourage parents
and children to access the advice and assistance available.
• Local publicity for the Advice and Information Service
and DARS – CLC recommends that posters and pamphlets
be disseminated in schools, public libraries, doctors and
dentists practices; hospitals. There should also be a media
campaign to coincide with the launch of the services.
• Information about the structure and range of SEN provision
is essential to enable pupils and their parents to make an
informed choice about their education. It is also important
that the Boards provide details of the relevant Board Officers
parents may contact, should they wish to obtain further advice
and information directly from the Board.
• Working with schools – CLC recommends that the
Department of Education produce a circular, requiring schools
to encourage pupils and their parents to contact this service
and to incorporate this practice within the school’s
SEN policy.
• Monitoring the Service – The Boards should set
up a joint working group to evaluate the service on an annual
basis and develop best practice.
• CLC also recommends that there should be a complaints
procedure in place to process any complaints regarding this
service. This would also help the Boards in evaluating the
service and developing best practice for the future.
6) Resolution of Disputes - 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 4.34 of the Guidance, 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 Guidance.
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 Guidance
includes a stipulation that the Dispute Avoidance and Resolution
Service (DARS) 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 4.41, 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.
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
Guidance should make a recommendation in relation to this
joint working relationship.
Paragraph 4.43 sets out the minimum standards for DARS. CLC
has the following additional comments to make:
• It is essential that the service is adequately resourced
to meet demand. Funding will require regular monitoring and
review to ensure that the service can meet parents and pupils
needs.
• DARS procedures should be published in information
leaflets, in a variety of formats, for service users.
• Working with schools – CLC recommends that the
Department of Education produce a circular requiring schools
to encourage pupils and their parents to utilise DARS and
to incorporate this practice within the school’s SEN
policy.
• Monitoring the Service – The Boards should monitor
the uptake of this service by recording the number of referrals
by schools, evaluate and review the service on an annual basis
and develop best practice.
• CLC also recommends that there should be a complaints
procedure in place to process any complaints regarding this
service. This would also help the Boards in evaluating DARS
and developing best practice for the future.
Finally, with reference to paragraph 4.47 of the Guidance,
CLC wishes to emphasise that feedback from parents and facilitators
should only ever be shared with Boards and schools after completion
of DARS. It is essential that DARS facilitators must remain
independent autonomous from schools and Boards during the
dispute resolution process. If the service is not perceived
by pupils and parents to be fully independent, then the uptake
of the service is likely to suffer.
7) Appeal against the content of a Statement - 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
Equality Commission’s Code of Practice for Schools 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 this section of the Guidance be amended to include a
specific reference to the child’s right to participate
in appeal proceedings (in accordance with Article 12 (UNCRC)).
8) Unopposed Appeals - In relation to unopposed appeals, the
Guidance 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.
9) Duty to inform parent where special educational provision
is made - 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 this Guidance should go
further than this. The Guidance should include (at paragraph
4.61) 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,
in accordance with Article 12 (UNCRC). The child should be
an active participant in any decisions made.
10) 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 made recommendations in our response to the draft
SENDO that the new statutory right be extended to afford the
child a separate right of appeal to the SENDIST. CLC therefore
requests that the Guidance make specific reference to the
child’s right under Article 12(UNCRC) to be involved
in any appeal process concerning their education.
CLC also welcomes the position reflected in the Guidance at
paragraph 4.67 that ‘exceptionally a school may consider
that a statutory assessment may be necessary even though no
action has been taken at Stages 1 to 3 of the Code of Practice’.
This may be relevant, for example, in circumstances where
a child’s special educational needs are identified later
in their schooling; where the child is soon to transfer school;
or where it is apparent from the outset that the school does
not have the appropriate in-school resources to meet the child’s
needs at Stages 1-3 of the Code of Practice. It is important
that Boards develop a protocol for dealing with these exceptional
requests and that this is available to school principals.
11) Statements of Special Educational Needs – Paragraph
4.76 of the Guidance highlights parents new rights to have
a meeting with the Board in circumstances where the Board
proposes to amend a child’s statement or where changes
are proposed relating to the type or name of a school or non-school
provision detailed in the statement. CLC requests that this
paragraph be amended to include a recommendation that the
child also has a right to attend this meeting and have his
or her views heard in respect of any proposals likely to affect
their education.
12) Additional Children’s Law Centre recommendations
for incorporation into the Guidance – 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 Guidance:
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.
Section 5: Inclusion of Children with Special Educational
Needs
The Children’s Law Centre welcomes this section of the
Guidance, which sets out the key principles of inclusion and
clarifies some of the new statutory duties and responsibilities
on Boards and schools introduced under SENDO. It also includes
some practical recommendations which should influence policy
and procedures to promote inclusion of children with special
educational needs and disability in schools. CLC has the following
additional comments to make in relation to this section:
1) Introduction – Paragraph 5.3 sets out the duty to
educate children with special educational needs in mainstream
schools under Article 7 of the 1996 Order. This should be
amended to include the revised statutory duty under Article
3 of SENDO. CLC would also recommend that this introduction
should focus on the wider context of international children’s
rights and include the text of Article 23 of the UNCRC which
provides:
‘State parties recognise 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 effective 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’.
2) Developing Effective Inclusion – At paragraph 5.6,
CLC requests that Guidance should include a recommendation
that schools should develop an Inclusion Policy outlining
strategies and procedures to promote inclusion of pupils in
all school activities. Such a policy should make particular
reference to children with SEN and disability. The policy
may also refer to other groups of children who may need additional
support to promote inclusion, such as pupils from ethnic minorities
including traveller children, school age mothers and children
who are looked after. A school policy for inclusion will afford
the same protection to all pupils. The Department of Education
could issue guidance for schools in relation to development
of an Inclusion Policy, by way of a Departmental Circular.
We note that paragraph 5.37 of the Guidance refers to the
role of the Education and Training Inspectorate (ETI) in monitoring
how the inclusive policies schools and Boards have in place
are working in practice. The monitoring role of ETI would
be easier in principle, if schools were required by the Department
of Education to have a clear written policy for inclusion.
Schools should also refer to this section of the Guidance
when developing their school Inclusion Policy.
3) Safeguarding the Needs of Pupils with Special Educational
Needs – At paragraph 5.14, CLC is of the view that the
Guidance should stipulate that 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.
At paragraph 5.15(b) we would request an amendment to the
Guidance requiring Boards to have regard to the wishes of
children as well as their parents.
At paragraph 5.15(d) we would request an amendment to the
Guidance requiring Boards of Governors to ensure that school
staff will have access to appropriate training to ensure that
they can identify pupil’s individual needs.
At paragraph 5.15(g) we would request an amendment to the
Guidance requiring Boards to have regard to the wishes of
children as well as their individual needs.
4) Efficient Education of Other Children – With reference
to paragraph 5.16, CLC requests that this paragraph should
make reference to the Boards duty to take all reasonable steps
to prevent incompatibility of a mainstream placement for a
child with special educational needs.
5) Reasonable steps – With reference to paragraph 5.20,
we note that one of the factors to be taken into account when
considering what steps are reasonable is ‘the financial
and other resources implications of taking the step’.
CLC would argue that given the substitution of Article 3 of
SENDO for Article 7 of the 1996 Order, the criteria of ‘efficient
use of resources’ no longer applies to the duty to educate
a child with special educational needs in mainstream education.
We request that the Guidance be amended to omit this factor.
6) Instances where it may not be possible to include specific
children –
Given the recommendations for added protection for ‘vulnerable
pupils’ contained in the Department of Education consultation
document ‘Suspension and Expulsion Procedures –
Proposals for Change’ (March 2004) it is very important
that clear statutory regulations and guidance are issued for
Boards, principals and Boards of Governors of schools 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. CLC notes the
comment at paragraph 5.27 of the Guidance that further guidance
on suspensions and expulsions will be issued by the Department
in 2006, following the above-mentioned consultation.
7) Independent Schools – At paragraph 5.33 we would
request that specific reference be made to the child’s
right to have their views heard by the Board when considering
the suitability of an independent school placement.
Appendices
Appendix 1 – Abuse of Efficient Education Caveat
Appendix 2 – Reasonable Steps
The Children’s Law Centre welcomes the case study examples
provided in the two appendices to the Guidance. These case
studies will be very useful to illustrate the type of adjustments
which school managers may be expected to make in order to
accommodate children with special educational needs and disability
in their school, in order to comply with the new duties under
SENDO. The case studies are also a useful reference for parents
when making individual requests to schools.
The Children’s Law Centre would like to thank the Department
of Education for providing the opportunity to respond to this
Consultation.
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
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