Care and support

Implementing the Disability Duties introduced in the Special Educational Needs and Disability Act 2001

Practical guidance on how to avoid discrimination - information for parents and carers

Introduction
The Special Educational Needs and Disability Act (SENDA) came into effect in September 2002. The purpose of this information is to help you understand how SENDA fits in with the Special Educational Needs Code of Practice 2001, produced by the Department for Education and Skills (DfES). It aims to give practical guidance on how to avoid discrimination against current and prospective disabled pupils in schools.
Please remember that this is intended as a brief guide. If you wish for more detailed guidance the references given towards the back will tell you where you are able to find out more information.

Key Duties
The two key duties of the Code are that schools should:

not treat disabled pupils less favourably than other pupils

take reasonable steps to avoid putting disabled pupils at a substantial disadvantage

SENDA supports the provision of a mainstream school place for a child with special educational needs, if it is your wish that your child has a mainstream education. (So long as it is appropriate for your son/daughter, compatible with the education of other children and the efficient use of resources.)

Children with a Disability
A child has a disability if he or she has a physical or mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out normal day to day activities. It is considered that a child has long-term needs if these are severe enough to affect the child for a year or more.
A child with a disability may have special educational needs if he or she has difficulty with his or her learning and/or if he or she needs equipment or support which are required to meet a pupil's specific educational needs and enable them to access the curriculum, which would normally be provided through a Statement of SEN. This might include a laptop computer or similar writing tool or an angled writing frame.

A child may therefore have either a disability or special educational needs or both.

Schools’ Duties
There is now a Code of Practice for Schools, produced by the Disability Rights Commission (DRC) with regard to their duties outlined in the SEN and Disability Act 2001. You may ask to see the school’s copy of this Code or a version is available on the DRC website (use the link on this page). It is now against the law for schools to discriminate against your child for a reason related to his or her disability in:

admissions

exclusions

education and associated services, including school trips, teaching and learning, the curriculum, homework, school sports and the serving of school meals

Reasonable adjustment
The Act says that a school must take reasonable steps to ensure that pupils with a disability and prospective pupils are not placed at a considerable disadvantage in comparison with those who do not have a disability.

An anticipatory duty
Schools are not expected to make any physical adjustment to their buildings straight away but they are expected to consider, in the long term, what general adjustments need to be made to meet the needs of pupils with a disability. Not every school will need to adopt the same approach - different schools might identify different steps to be taken.

Schools have a continuing responsibility and will need to keep their policies, practices and procedures under continuous review. As a parent or carer you will have an important role to play with this - you can help your child’s future school know of any adjustments that may need to be made. You can take part in these discussions at review meetings, parent consultation meetings and the Governors Annual General meeting.

However, schools do not have to:

provide equipment or support which would normally be provided through a Statement of special educational needs

remove or alter physical features of the building (as this should be done through longer term planning with the local authority)

Confidentiality
It is helpful for all members of staff within the school to know that a pupil has a disability, to ensure that they do not treat them less favourably. If your child has a disability, the school will be happy to communicate relevant information about this to all staff that may meet with them at any point during the day.

However it may be that you, or your child, would like his or her disability to be kept confidential, and if so the school should take account of your request. Of course, a school cannot be expected to make a reasonable adjustment to take account of a pupil’s disability if a request has been made to keep the disability confidential from staff.

Discrimination
A school may be discriminating against a pupil with a disability if it:

treats a pupil "less favourably" for a reason related to his or her disability, and it cannot justify that treatment

does not take "reasonable steps" to ensure a child is not at a substantial disadvantage, compared to the other pupils at the school

The Act says that a school discriminates against a child with a disability if for a reason relating to his or her disability, it treats him/her less well than it treats others who do not have a disability. However, it also says that if less favourable treatment can be justified, this is not unlawful discrimination.

If you feel that there has been discrimination against your child you should talk to his or her school about any concerns you may have. If you still have concerns you can always speak to the Parent Partnership Supporter for your area, they may be able to offer additional information and guidance. The contact names and telephone numbers are on the last page. The school and the Children, Schools and Families department (Customer Services Centre 01438 7375000 or 01923 471500 if calling from Watford) will have a complaints procedure for you to follow. If there is no complaint procedure in place at the school, or you are still not happy with the response, you can contact the Disability Rights Commission (DRC) helpline. This helpline should be able to give you advice at any time about your concerns.

The DRC address and telephone number is printed towards the end of this information.

The Special Educational Needs and Disability Tribunal (SENDIST)
In September 2002 the Special Educational Needs Tribunal was renamed the Special Educational Needs and Disability Tribunal (SENDIST). In addition to hearing cases relating to the provision of special educational needs, the Tribunal will also hear claims of unlawful discrimination in relation to fixed period (temporary) exclusions from schools or if you feel there has been unlawful discrimination against your child within education and associated services. The term education and associated services covers teaching provided by teachers and other school staff. It also includes what happens at lunchtimes and other breaks and activities such as after-school clubs, school trips, and school orchestras. Adult education provided in schools and services to parents is not covered.

An appeal should be lodged with SENDIST within six months of the date you feel that discrimination took place (this timescale applies only to discrimination claims as special educational needs cases have to be lodged within two months.) SENDIST does not have the power to order a school to pay compensation for discrimination against a child because of a disability.

Local Appeals
Appeals regarding unlawful discrimination in respect of refusal to admit to, and permanent exclusion from, local schools will continue to be heard under the local authority arrangements for admissions and exclusions appeals hearings.

Conciliation
The Disability Rights Commission (DRC) runs an independent conciliation service. The purpose of which is to promote the settlement of claims without going to the SEN and Disability Tribunal or other body. Disputes may be referred to conciliation if both the parent and the school agree, however, the DRC do not have the power to impose a settlement.

Agreeing to the conciliation process does not prevent you from pursuing a claim of discrimination through the SEN and Disability Tribunal or the admission or exclusion appeal panel. (The DRC Conciliation Service is separate to the disagreement resolution arrangements covering special educational needs issues and explained in the SEN Code of Practice 2001.)
If you would like more detailed information you can write to or ring the Disability Rights Commission for range of information, guidance and advice on the Disability Discrimination Act 1995:

Disability Rights Commission (DRC) Helpline
Freepost MID02164
Stratford-upon-Avon
CV37 9BR

Helpline: 08457 622 633 (Monday to Friday from 8.00am until 8.00pm)
Textphone: 08457 622 644
Fax: 08457 778 878
Email: enquiry@drc-gb.org
Website: www.drc-gb.org (Disability Rights Commission)
www.dcs-gb.org (Disability Conciliation Service)

Disability Rights Commission documents are available in alternative formats and languages. Ethnic language translation is available on request of documents that have not been published in that language.

Special Educational Needs and Disability Information
Special Educational Needs and Disability Tribunal guides can be obtained from the Tribunal. Two new guides are available from SENDIST: 'Disability Discrimination in Schools: how to make a claim' and 'Special Educational Needs: how to appeal'.
SENDIST
5th Floor
Windsor House
50 Victoria Street
London
SW1H 0NW

Telephone 020 7925 6925
Fax 020 7925 6926

The SEN Code of Practice 2001 is available, free of charge, from the Department for Education and Skills (DfES). Please ring 0845 602 2260.

More information for parents and carers is available on the county council’s website www.hertsdirect.org or by contacting the Customer Service Centre on 01438 737500. If calling from area codes 01923 and 0208 you should ring 01923 471500 so that your telephone call is charged at local rates.

Hertfordshire Parent Partnership Service
East 1 (formerly North)
(This area includes Stevenage, Hitchin, Letchworth, Baldock, Royston)
Irene Holland
01462 634488
irene.holland@hertscc.gov.uk

East 2
(This area includes Hertford, Hatfield, Welwyn Garden City, Hoddesdon, Broxbourne, Cheshunt, Waltham Cross, Bishops Stortford and Sawbridgeworth)
Dawn Owen
01920 411152
dawn.owen@hertscc.gov.uk

West 1 (formerly South)
(This Area includes Borehamwood, Bushey, Watford, Rickmansworth, Radlett,
Potters Bar)
Karen Edwards
01442 453316
karen.edwards@hertscc.gov.uk

West 2
(This area includes Berkhamsted, Bovingdon, Harpenden, Hemel Hempstead, St Albans, Kings Langley, Tring)
Helena Marks
01442 217143
helena.marks@hertscc.gov.uk

Additional information
This booklet is available on request in large print, Braille computer disc, audiotape and other languages. The booklets marked with an * are available from the DfES (0845 602 2260) in other languages, on tape or in Braille, do please ask.

Special Educational Needs: a guide for parents*

Jargon - who needs it?, understanding Children, Schools and Families talk and much more

Listening to Children and Young People

Disability Discrimination

What if we cannot agree?

Special Educational Needs and Disability Tribunal: How to appeal*

This information has been produced in co-operation with the Hertfordshire Parent Advisory Group and the Eastern Region Parent Partnership Group