At the heart of the legislation that relates to Special Needs is The Equality Act 2010, an act that applies to all of the UK except Northern Ireland and which pulls together many of the issues that relate to discrimination in all its forms.
The Equality Act stresses that all local authority schools, church schools, free schools, and academy schools have a duty to meet the special needs requirements of the children in their school as laid down in the Equality Act 2010. There is also a government document covering the relationship between schools and the Equality Act.
While the Act has not changed in recent years, one factor has emerged which has led to occasional disputes between schools and parents, and before we look at the relevant laws in detail it is worth noting this particular point.
Following a decline in the funding given to Ofsted in England changes to the way in which schools are being inspected occurred, and this has meant that some schools that have been ranked at the highest level in the past have had quite light levels of inspection when their turn comes around again.
Cases have arisen wherein a parent has challenged a school over a lack of provision concerning a specific special need, and the school has defended its position by noting that the inspectorate commended the school thoroughly on its work – even though it had no provision for pupils or students with a specific special need.
This is a matter, of course, for each school, school group or LA, and in publishing these notes we are not setting ourselves up as lawyers, but our understanding is that an inspector’s comments cannot remove the need for the school to obey the law of the land. It is the Equality Act, rather than anything that an inspector might say, which is the definitive statement in such matters. Obviously, however, each school will make its own decision.
In essence the Equality Act means that schools cannot discriminate against pupils because of their sex, race, disability, religion or belief, or sexual orientation.
The law on disability discrimination, however, is different from the rest of the Act, and in essence it means that schools are allowed to (and indeed should) treat disabled pupils more favourably than non-disabled pupils. Indeed in some cases schools are required to do so, by making reasonable adjustments to put the special needs pupils and students on a more level footing with pupils without disabilities.
However, the Act makes it quite clear that schools do not have to go to any length to meet the requirements of a disabled pupil or student. There are limits of reasonableness.
For example, a school in a Victorian building could argue that it is simply not viable to widen every door and install lifts for a wheelchair bound student, especially if such changes could affect the very fabric of the building.
But when it comes to supplying teaching resources which are readily available and low cost, it is virtually impossible to make this argument. Indeed, as the link below to a case in Scotland shows, schools can be required to go the extra mile to make provision for a disabled student.
In short section 4.3 of the Equality Act suggests absolutely clearly that schools and the authorities that own or manage the schools do have an obligation to provide equal measures of education irrespective of disability, and on occasion may be expected to go further to meet the special needs of a child.
In addition to the Equality Act each part of the UK has its own regulations, and advisory documents. A few of these are shown below.
In 2015 the Department for Education produced the document, “Special educational needs and disability code of practice” which contains statutory guidance for organisations which work with and support children and young people who have special educational needs or disabilities.
The Education (Additional Support for Learning) (Scotland) Act 2004 contains some important additional points, including the fact that, “A child may require additional support for a variety of reasons. These may include those who are being bullied, are particularly gifted, have experienced a bereavement, or are not attending school regularly, as well as those who have behavioural or learning difficulties, mental health problems, or specific disabilities such as deafness or blindness.”
The Bill, passed on 1 April 2004, placed duties on education authorities to provide for children with additional support needs, introduces co-ordinated support plans (CSPs) to replace the old record of needs system, and establishes a new Additional Support Needs.
A further act, Education (Additional Support for Learning) (Scotland) Act 2009 came into force on 14 November 2009. The amendments relate, among other things, to:
- the rights of parents to make out of area placing requests
- following a successful out of area placing request parental access to mediation and dispute resolution from the host authority
- increased parental rights in respect of access to the Additional Support Needs Tribunals for Scotland (ASNTS)
- the provision of a new ASNTS national advocacy service.
In addition the 2009 Act
- automatically deems that all looked after children and young people have additional support needs unless the education authority determine that they do not require additional support in order to benefit from school education
- education authorities must consider whether each looked after child or young person for whose school education they are responsible requires a co-ordinated support plan (CSP).
The Education Act 1996 notes that a learning difficulty is defined by section 312(2) as: a) having a significantly greater difficulty in learning than the majority of children of the same age; b) having a disability which either prevents or hinders them from making use of educational facilities of a kind generally provided for children of their age in schools within the area of the local authority; or c) if they are under compulsory school age and fall within the definition at a) or b) or would do so if special educational provision was not made for them.
Section 312(4) states that special educational provision means: a) for children aged two or over, educational provision that is additional to, or otherwise different from, the educational provision made generally for children of their age in maintained schools, other than special schools, in the area; b) for children aged under two, educational provision of any kind.
As elsewhere in the UK a child is not regarded as having a learning difficulty solely because the language spoken at home is different to the language in which they will be taught.
Northern Ireland is largely outside the remit of the Equalities Act and Special educational needs as defined in the Education (N Ireland) Order 1996 as meaning that a child has a learning difficulty or a disability which calls for special educational provision to be made available.
The law says that a child has special educational needs if he or she has a greater difficulty in learning than the majority of children of the same age, or has a disability which makes it difficult for the child to use the same facilities as other children.
The 1996 Order provides for Boards to assess a child who has special educational needs. Following this assessment the Board may decide to prepare a report. The Board has to make provision to meet the child's needs as outlined in the statement.
A statutory assessment is a multi-disciplinary assessment of a child's needs to decide if a statement of special educational needs is required. The process requires the Board to seek parental, educational, medical, psychological and social services advice, together with any other advice which may be considered desirable. Parents will be informed of the name of a Board officer who will be available to offer help and support during the process. Advice is also available from a range of voluntary organisations.
The Code of Practice on the Identification and Assessment of Special Educational Needs indicates that approximately 2% of children will have such needs. To decide if a statement is necessary the Board may carry out a statutory assessment.
The relevant legislation for Special Educational needs and provision i in the province can be found at