DDASEN

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DDA/SEN

• DDA/SEN overview/update for ISC
• November 2008
• davidwolfe_at_matrixlaw.co.uk

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The DDA

• Disability Discrimination Act 1995
• Amended by the Special Educational Needs and
  Disability Act 2001 (SENDA) to apply to education
  and schools

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Responsible Bodies

• Imposes obligations on responsible bodies
• For an independent school, the responsible body
  is the proprietor
• No special rules relating to independent schools
• But the limited case law relates mostly to
  maintained schools

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Complaints

• DDA complaints can thus be made directly about an
  independent school
• Complaints by parents to SENDIST (now HESC)

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SENDIST/HESC powers

• Can make any order apart from payment of
  compensation
• Can thus make declarations as to unlawful conduct
  or order eg training or an apology
• Parent/Responsible Body can appeal to High Court
  against a decision by SENDIST

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Disabled person

• Wide definition
• Physical or mental impairment which has a
  substantial and long-term adverse effect on
  ability to carry out normal day to day activities

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Substantial

• More than minor or trivial

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Long term

• More than a year

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Normal day to day activities

• Listed in the DDA
• Include
• Manual dexterity/physical co-ordination
• Continence
• Speech/hearing/eyesight
• Memory or ability to concentrate, learn or
  understand

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Examples

• Autism
• ADHD
• Dyslexia
• MLD
• SLD

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Effect of medical treatment

• Does not impact on whether a person is disabled
  other than in relation to glasses/eyesight
• Thus, eg, Ritalin controlled ADHD can still be a
  disability

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Unlawful discrimination

• Two types
• Unjustified less favourable treatment for a
  reason related to disability
• Unjustified failure to make reasonable
  adjustments to ensure that disabled pupil not
  disadvantaged compared to non-disabled peers

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Situations where it applies

• Admissions
• Exclusions
• Education and Associated Services
• i.e. pretty much all educational aspects of
  school life

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Less favourable treatment

• Needs only be marginally less favourable
• Can be in a decision (eg to exclude)
• Or in a policy (eg in relation to school trips)
• Less favourable treatment is justified if it is
  the result of a permitted form of selection

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Comparator

• House of Lords changed the law in June 2008
• Now, in effect, compare the less favourable
  treatment of the disabled pupil with how a
  non-disabled pupil would have been treated in the
  same circumstances

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Reasonable steps

• Obligation to take reasonable steps to prevent
  person being placed at a disadvantage compared to
  non-disabled pupils
• Does not require alteration of premises of
  physical features nor the provision of auxiliary
  aids and services

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Auxiliary aids and services

• reasonable steps likely to include, changing
  policies, adjusting trips, extra teaching
  resources, staffing, etc

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Who pays?

• Disability Rights Commission Code of Practice
  says independent schools can charge parents for
  reasonable adjustments
• But that pre-dates the decision of the Court of
  Appeal against Ryanair

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SEN

• Education Act 1996
• SEN Code of Practice
• SEN needs which require SEP
• SEP different to what others generally receive
• LEA is overall responsible for all children in
  its area

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Within school

• School Action additional support in school
• School Action school some external input
• Statutory assessment may need provision beyond
  SA which LEA should determine
• School or parents can request
• Parents can appeal against refusal

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Assessment process

• Statutory consultees including school
• Approx 6 months total
• May lead to draft statement
• Parents can appeal against refusal to make
  statement

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Statement of SEN

• Part 2 SEN
• Part 3 SEP (specified and quantified)
• Part 4 Placement (type/name)
• LEA to arrange SEP unless parents have made
  suitable alternative arrangements

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Independent School

• (1) IS could be named by LEA/Tribunal in Part 4
• OR
• (2) Parents place their child at the IS and then
  seek LEA assistance

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(1) Parent wants IS in part 4

• Parent can either persuade LEA/Tribunal that only
  the IS is appropriate
• OR
• Parent can rely on Education Act 1996 s9 to say
  that the extra cost is not unreasonable public
  expenditure

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(1) IS named in Part 4

• LEA must pay
• School must arrange annual reviews
• LEA should attend annual reviews
• LEA can visit to monitor

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(2) Parent places child at IS

• If child at SA or SA then no LEA role
• School has DDA obligation to take reasonable
  steps
• If child has a Statement of SEN
• LEA can fund the extra SEP (in Part 3)
• It may be possible to force LEA to do so

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SENDIST

• All change from 3 November 2008
• New decisions now appealed to the Health
  Education and Social Care Tribunal (HESC)
• New procedures/rules

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