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School Admissions (Special Educational Needs)

Volume 616: debated on Tuesday 1 November 2016

Motion for leave to bring in a Bill (Standing Order No. 23)

I beg to move,

That leave be given to bring in a Bill to make provision about the access to education, school admissions and support for special educational needs, with particular reference to children diagnosed with autism; and for connected purposes.

The Equality Act 2010 exists to protect people of all ages from discrimination. It should prevent disabled people from being treated unfairly because of their disability, but in some respects, sadly, there is still a long way to go. Like every other Member, I suspect, I have had parents of disabled children visit my surgery. Like all parents, they want the best for their children, but as a result of the barriers that they have to overcome, they are even more driven and determined than most as, too often, the system makes it difficult to ensure that their children get the very best, particularly when it comes to education.

It is an irony that the Equality Act is being used to discriminate against children with autism. The National Autistic Society believes that too many schools do not fully understand their duties towards children and young people with this condition. The law requires them to make reasonable adjustments for their disabled pupils, so that they may achieve their full potential. “Reasonable adjustment” means ensuring that a disabled child can do what their non-disabled peers do.

There appears to be a loophole in the law that does not consider challenging behaviour linked to a child’s disability as an impairment. If their disability could result in aggressive behaviour towards others in the school, the law on disability discrimination does not help them, and some governing bodies use “tendency to physical abuse of others” as a reason not to meet the needs of an autistic child and to exclude them. Of course, governors have a duty to others in the school, but it can sometimes be easier to refuse admission than to facilitate a solution.

Let me give a specific example from my constituency. Mr and Mrs Chase of Healing in north-east Lincolnshire took the decision to remove their son from his second maintained mainstream primary school owing to the lack of appropriate provision and a lack of advice and support for the school and themselves with regard to the types of provision that could be put into a mainstream school. Explaining their decision to withdraw their son, Mr and Mrs Chase said in their email to me:

“Our decision was the last straw and a very hard decision to make. However we could no longer sit back and watch our son’s lack of education continue. So throughout the summer holidays we pushed the LEA and SEN Assessment Team for an out of area specialist school placement for our son and due to the fact there is nothing else in the area for our son, his placement was agreed and he started at an independent family run school in Brigg that provided a specialist setting for boys on the autistic spectrum.”

Although this may be difficult to replicate on a wider scale, it is not impossible.

Mr and Mrs Chase continued:

“The first two weeks went very well, but we experienced some blips as this setting is very different to a mainstream school and our son is still trying to become familiar with the differences in environment, figuring out where the boundaries are, how to fit in with his peer group and also start to manage a full school day and realise that he must do this five days a week.”

Mr and Mrs Chase went on to say that

“without the right kind of ethos and staff attitude, specialist units can become very institutional and more like mini correctional facilities, which often can do more damage than good to children with these conditions.”

Mr and Mrs Chases’s son was permanently excluded when his primary school became an academy. They challenged the decision through an independent panel review, which concluded that the school had made a premature decision on permanent exclusion and asked it to reconsider, but the independent panel had no power to reinstate their son.

Mr and Mrs Chase said:

“Our main worry as parents of a disabled child with some very challenging behaviours caused by his disabilities is that with regulation 4 (1)”—

of the Equality Act—

“disabled children are being villainised, they are being made out to be the bad guys particularly in disability discrimination cases . . . Our children’s rights to an education and also special educational needs provision due to their disabilities are being washed away by this regulation. Schools are getting away with poor special educational needs provision for disabled children and most probably poor allocation of the additional monies allocated to special needs children. Schools have been given a loophole in law to out difficult disabled children that are their responsibility to educate”,

due to regulation 4(1).

I appreciate that this is emotive language, but I ask Members to put themselves in the shoes of parents who find barriers placed in front of them. They want to prevent their children from being discriminated against. That must surely have been the intention of the Equality Act. In fairness I must emphasise that I recognise that some schools and local authorities make far better provision than others. Teaching assistants are often allocated to work with autistic children. Indeed, my own daughter has performed this task at a primary school in my constituency.

In March this year, the House of Lords Select Committee on the Equality Act 2010 and Disability published a report evaluating the impact of the Act on disabled people. Evidence was presented to the Committee by the charity Independent Parental Special Education Advice and also by the Alliance for Inclusive Education. Section 501 of the report states that those organisations

“were concerned that the exclusion had resulted in schools moving straight to exclusion of pupils with challenging behaviour, without first considering whether reasonable adjustments could prevent it.”

The report continued by pointing out that challenging behaviour results because reasonable adjustments have not been made.

Recommendation 503 of the report states:

“Schools should be encouraged and supported to make the kinds of adjustments that can help to address the educational inequalities faced by disabled children and young people, including those whose disability gives rise to challenging behaviour. This is undermined by Regulation 4(1) of the Equality Act 2010 (Disability) Regulations 2010, and we recommend that the Regulations are amended so that a tendency to physical abuse of other persons ceases to be treated as not amounting to an impairment for the purposes of the definition of ‘disability’.”

The Government responded as follows:

“Our Special Educational Needs and Disability (SEND) Code of Practice makes it clear that teachers should look beyond disruptive or challenging behaviours to determine whether there are underlying issues or disabilities and put appropriate support in place. . . The department’s exclusion guidance also sets out that early intervention measures should include an assessment of whether appropriate provision is in place to support any SEN or disability that a pupil may have. It makes clear that schools should consider the use of a multi-agency assessment for pupils who display persistent disruptive behaviour, which could include pupils who have unidentified SEN. Schools should arrange such assessments when concerns arise rather than waiting for a specific trigger.

Although there remain strong public policy reasons behind the excluded behaviours, the Government has listened to the issues raised by the Committee and will consider how the exemption around ‘a tendency to physical abuse of other persons’ applies to those under 18 in an education context.”

As we all know, guidance and what actually happens can sometimes be very different. I recognise that much good work takes place, but parents of autistic children can sometimes have an uphill task to ensure that a full and comprehensive education is made available. Society has made great strides in recent years in how we educate and care for the disabled, whether that disability be mental or physical, but there is still some way to go. My Bill seeks to remedy one of the loopholes, and I hope that the Minister, who I know cares deeply about these issues, will work with me and the various charities and support groups to ensure that the difficulties faced by my constituents and thousands of others is minimised and eventually eliminated.

Question put and agreed to.


That Martin Vickers, Mrs Cheryl Gillan, Jim Shannon, Fiona Bruce, Mr Barry Sheerman, Melanie Onn, Kit Malthouse, Mr David Nuttall, Mr David Burrowes, Justin Tomlinson and Rehman Chishti present the Bill.

Martin Vickers accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 16 December, and to be printed (Bill 85).