SEN and Disability Bill: Step inside

New legislation on special needs education is being widely welcomed, but there are worries about what it could mean for special schools and for teachers, says Radhika Holmstroem

On paper, says Helen's mother, 'she doesn't look like the sort of girl who should be using mainstream education. But we fought that. And we had lucky breaks - a good playgroup, a welcoming school, and good advice'.

Helen has Down's syndrome, with additional communication, medical and mobility difficulties. Her education - like that of many disabled children - has been punctuated by confusion, struggle and lack of information. At age three, she was offered the option of a long escorted taxi journey to a nursery 20 miles away, or a mixture of two playgroups - one for children with special needs and one mainstream, with two weekly sessions of one-to-one support. Her family opted for the playgroups, but this meant a lot of disruption and didn't help her progress.

At age four, her educational needs still hadn't had been properly statemented, and most professionals assumed she would go to a special school. Her parents, however, felt she would make better progress in mainstream education.

When Helen's statement eventually came through it recommended a special school, with some classes in mainstream education to be added on when she was 'ready'.

Determined to fight on, her family found out that both the head teacher and the special educational needs co-ordinator (SENCO) at the local primary school were happy to take her; but it took extra advice from the charity Mencap to convince the local authority to agree. Even then, only luck and goodwill got a full statement through in time to get the necessary teaching support.

Equal opportunities
The Special Educational Needs and Disability Bill, which is likely to become law this year, should mean that children don't have to depend on lucky breaks for advice or a mainstream place. Although it doesn't go into great detail on early years, the new Bill extends the Disability Discrimination Act to cover all education provision, and ends the anomaly by which disabled children were protected from discrimination in childcare under the Act, but not in education.

Under the new legislation it will be required that:

• Education providers will now have to treat disabled pupils and students on an equal footing with non-disabled pupils and students, and must make 'reasonable adjustments' so that disabled pupils are not put at a substantial disadvantage.
  
  This means that children with disabilities and/or special educational needs have greatly strengthened rights to mainstream education, with the appropriate support. The new legislation does not rule out the case for special schools, but it should mean that disabled children are not automatically pushed in that direction.
  
  
• Schools and local authorities will have to plan strategically for children with disabilities, and make their plans available.
  
  
• 'Parent partnership services' will increase parents' access to information about local SEN provision, and
  
  
• Independent conciliation services will enable both parties to sort out disputes at an early stage - two measures which would also have been invaluable to Helen's family.
  
  
• If cases go to tribunal level, a new SEN and Disability Tribunal will hear appeals against local education authorities' decisions on children with SEN and also appeals on discrimination on the basis of disability.

Early years issues
The disability organisations have been lobbying for this kind of legislation for a long time. The Special Educational Consortium (SEC) sums up the views of its 250-plus members, saying the new Bill 'could dramatically improve the quality of education available for disabled pupils', and will facilitate a genuinely inclusive education system.

As always, however, there are potential problems, not least the failure to tackle early years provision directly. The SEC would like early years providers who receive Government grants to be required to have an SEN policy, and LEAs to be required to provide greater support to early years providers.

SEC policy officer Philippa Stobbs says, 'In areas which rely heavily on private and voluntary providers it's difficult to get support across them all.

A duty on LEAs to provide SEN support across that range would be very useful.' The current Bill falls into two parts. The first part deals with children who have been statemented for special educational needs. The second is intended to cover disability discrimination and so looks at the way the Disability Discrimination Act will be extended to schools.

Both parts of the Bill also give schools potential get-out clauses. The part which concerns statemented children allows schools to refuse to take pupils who might affect the 'efficient education of other children'. The National Union of Teachers supports this. John Bangs, head of the union's Education and Equal Opportunities department, argues, 'If teachers feel they are being forced to teach children with disruptive behaviour who ought to be in separate provision, any commitment to inclusion will go out of the window. After all, teachers are the people who'll be making inclusion work.'

However, a number of organisations, including the Disability Rights Commission, point to the raft of existing safeguards already in place and argue that this caveat automatically presents all disabled children in a negative light.

The SEC flags up further concerns under the second part of the Bill. Schools are required to take 'reasonable steps' to ensure a child isn't discriminated against on the basis of their disability, but they have a broad range of exemptions. Ms Stobbs says, 'Selection - for instance, if your school gives you up to 15 per cent selection on musical ability - should apply to all children equally.'

Specialist support
Some people are also worried that this legislation will mean the end of special schooling. In fact, special schools will remain but will increasingly work in partnership with mainstream education. Scope's special schools, for instance, will be developed to work alongside LEAs and mainstream schools, using the organisation's specialist knowledge to support inclusion. This is in line with most parents' wishes. As a recent National Autistic Society report highlighted, specialist support, geared specifically to a child's condition, counts more than the kind of school delivering it.

Pam Burrell is a SENCO at a private day nursery in Huddersfield, West Yorkshire, who has fought for specialist support. She says, 'Our local authority will fund one-to-one workers across the sectors, there's lots of training available and specialists are happy to come to talk to us - we talk to the child development unit and put it into practice in the nursery. That support element is crucial, if you're talking about including children with severe difficulties. For example, if we take a child whose eyelid doesn't close we can't risk him getting sand in his eyes. He can only play with sand if he has someone with him all the time. Staff need the confidence to take such a child, someone to say, "yes, you can do it".'

Training gaps
Ms Burrell's experience illustrates Mencap's main problem with the Bill. Some children with learning disabilities may need physical access, but all of them need access to an appropriate curriculum, and Mencap wants more emphasis on teacher training and skilled learning support assistants. And this won't come cheap.

Teaching unions like the NASUWT are concerned that schools will be required to take pupils without sufficient resources. Mencap and the SEC are concerned from their own standpoints. Ms Stobbs says, 'There's an increasing expectation that teachers will have disabled children in the classroom, and we should be building this into initial training. They also need to be able to draw on someone else, which is where the LEA should be able to step in.'

She adds, 'You need to know who you can draw on. If you're very pragmatic, and you're also a reflective practitioner who is able to work collaboratively, that's important. Early years workers tend to be especially good at working this way.'

So the Bill is still being questioned. But every disability and teaching organisation is keen to welcome it, and believes it should make a crucial difference to children like Helen.

And today, Helen is settled and happy in her first year at a mainstream primary, with the support she needs. Even if she later opts for special education, says her mother, it will have been a valuable experience for her, and for the other children. 'Before, when she spent most of her time at a special needs playgroup, everyone thought of her as "that funny-looking girl". Now all the kids and parents know who she is, they know her as Helen.'

Because the Bill should give other disabled children equal access to education, everyone hopes they'll soon be known by their names too.