In September this year, the Disability Discrimination Act (DDA) was extended to cover education. This means that in addition to the Special Educational Needs Code of Practice that has been in place since January, all early years providers have to abide by a parallel Code of Practice from the Disability Rights Commission (DRC) as well.
'Since early years providers are already covered by the SEN framework they're probably meeting most of the new duties already,' points out Philippa Russell, director of the Council for Disabled Children and a Commissioner on the DRC. 'But they do have to consider whether they're treating disabled children less favourably than other children who do not have a disability.' As the two codes are the core underpinning for the legislation, she explains, providers cannot afford to ignore them, and any Ofsted inspection will take them into account as well. 'If parents took an appeal to the SEN and Disability Tribunal, a school or nursery would have to demonstrate that it had had regard to them.'
'It will be clear to early years staff who read the codes what they are legally obliged to do. They will find it easy to find their way around them - the sections relating to the early years are clearly spelt out,' she continues.
Nursery World has already covered the practical implications of the SEN Code of Practice in some detail (see dates, right, and also the box below).
The main focus, particularly for early years providers, is on making the extra provision that will enable children to remain within mainstream education if at all possible. If personal aids and/or equipment are not enough to support a child's needs, this means taking the first step of 'Early Years Action', to see what can be provided in-house; and if that isn't sufficient, moving to 'Early Years Action Plus', bringing in outside intervention.
Nursery education providers can request a statutory assessment of a child's educational needs as well, if that seems the best course of action. But if they do so, they must show what individual teaching strategies have already been implemented. Throughout the whole process, partnership with parents and outside agencies is very important. In addition, all government-funded provision must have a written SEN policy, and nominate a particular member of staff to act as a Special Needs Co-ordinator (SENCO).
New DDA Code
The SEN Code and the rest of the SEN framework concentrate on what providers have to do to meet children's educational needs, and assume that this is increasingly going to happen in mainstream settings. The DDA Code is intended to complement the SEN framework, adding in the things providers have to do to make sure they aren't discriminating against disabled children - some of whom may not be covered by the SEN Code, because the DDA defines disability broadly, including a range of medical conditions. It also extends beyond teaching, to services like admissions and exclusions, playtime, the dinner queue, transport and after-school care.
It is worth noting that in fact the DDA Part 4 - the part that covers education -actually applies only to schools. Part 3 covers other providers of nursery education and childcare, as technically they're counted as 'goods and services'. In practice, however, the responsibility of those providers is pretty well the same.
There are two core duties under the DDA Code:
* The first is a duty not to treat disabled pupils less favourably than other children.
* The second is a duty to make 'reasonable adjustments' in order to avoid putting disabled pupils at a 'substantial disadvantage'.
Philippa Russell says that 'reasonable adjustments' will take account of the resources you've already got - 'so tiny playgroups are never going to have to do as much as a big school.'
You will not be required to make physical alterations to your building for individual pupils; these will either be provided by the LEA through the SEN framework or will be covered by wider planning duties, which require all schools to develop Accessibility Plans. Individual educational aids and equipment for pupils in maintained provision will also continue to be provided through the SEN framework as at present. In private provision, parents may be charged for these; but charges must be 'reasonable', and some local authorities can lend equipment and/or give advice. At the very least, it is worth asking the Early Years Development Partnership.
Concrete examples
As has been said, the DDA defines disability broadly and includes a range of medical conditions, so nursery schools cannot have a 'blanket policy'
not to admit certain groups of children with, for example, diabetes, epilepsy or learning disabilities. They are expected to consider what extra help a child might need and how they might provide it. They can take into account factors such as practicality, resources, health and safety matters and the interests of other children, but they should make further enquiries to see what extra support they could provide. The key issue is to think about how a disabled child could be included and what reasonable steps can be taken to enable this.
Philippa Russell gives some concrete examples of how nurseries might make 'reasonable adjustments', including assistance that doesn't change the physical fabric of a building but does make it more accessible. 'To accommodate a child in a wheelchair, even if you don't have much money, you could make the main or side entrance accessible with a portable ramp.'
But she adds, 'Above all, you do need to justify what you're doing. In particular, you can't simply decide that one disabled child is going to disrupt other children's education or be "too difficult", without actually proving this.'
Obviously, some aspects of the new code can be planned for in advance, especially the overall principle of accommodating disabled children. In practice, it is essential that parents are encouraged to tell you about a child's specific requirements. If parents have not told the setting that their child is disabled, and it is not clear to practitioners that the child is disabled, or it only becomes apparent after the child has joined the nursery, then the setting is not expected to be responsible for meeting their additional needs. This is one reason why it's important to make it known that parents can discuss their child's disability with you, to talk quite openly about disability when you're first meeting with parents, and to bring it up again, for example when you seek parental permission for a trip out.
'The new disability discrimination duties in education present challenges,'
Philippa Russell concludes, 'but most early years providers will be meeting them already. And what we all need to remember is that disabled children deserve the best chance in life.'
Nursery World ran a series of articles on implementing the Special Educational Needs Code of Practice, which started last year on 14 June 2001 and continued on 27 September 2001, 15 November 2001, 20/27 December 2001, 28 February 2002 and 14 March 2002.
Further information
* To obtain the Special Educational Needs Code of Practice (the core underpinning of the Education Act 1966 and other related education acts) write to DfES Publications, PO Box 5050, Sherwood Park, Annesley, Nottingham NG15 ODJ or email: dfes@prolog.uk.com.
* For a copy of the Disability Rights Commission Code of Practice (the core underpinning for the Disability Discrimination Act 2002) telephone the Disability Rights Commission's helpline on 08457 622 633.
