Essay: Effects of the Equality Act 2010 on SEN students in mainstream schools

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  • Effects of the Equality Act 2010 on SEN students in mainstream schools
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Immediately, after passing of the Universal Declaration of Human Rights in 1948 by the General Assembly, the educational privileges of those with mental or physical disability have been receiving ever increasing attention around the globe. As per Alexander & Salmon (1995), to make sure that special education is children’s privilege to receive an education which needs allocating them with separate class and provision of other learning material supports. As per Nathanson (1998) since the children are unequal, they need unequal treatment and hence, additional resources should be offered for helping children with learning difficulties.

According to World Health Organisation (2010) ‘Disability is an umbrella term covering impairments, activity limitations and participation restrictions. Impairment is a problem in body function or structure: an activity limitation is a difficulty in executing a task or action: while a participation restriction is a problem experienced by an individual in involvement in life situations’
Ofsted (2010) produced figures that suggested that about 1 in 5 or 1.7 million students were classified as having Special Educational Needs. This figure encompasses those students who are also defined as disabled under the Equality Act of 2010. Estimates of the proportion of children with a disability vary but recent analysis indicates that 7 per cent of children in England are disabled. There is a significant overlap between disabled children and those with SEN. Research suggests that around three-quarters of disabled children also have SEN and will currently be receiving support through the SEN system. Plus, SEN labelling can create low self-esteem and can deteriorate succeeding results, labelling students of ‘special needs’ frequently persuades school management to treat them differently and separately instead of perusing them in regular class. To treat them differently and separately are considered to be the handicap present in the existing SEN system. The introduction of The Equality Act 2010 sought to eliminate those elements within schools of treating SEN students differently and separately. Through the requirements of anti-discrimination measures, reasonable adjustments and treating disabled and SEN students more favourably the intended outcome is to improve the experience and achievements of these students.

Literature Review

History of Special Educational Needs in the UK

According to the Education Act, 1996, a child has special educational needs (herein after will be referred as SEN) if there is a learning hardship which needs supply of special educational care to him on the basis of his learning difficulty. For the purposes of SEN, a child includes any individual who is under the age of nineteen who is a registered student at a School in UK. Under section 323 of the Education Act (1996), a local authority from the local Council may issue a Statement of Educational Needs. This is a legal document which delineates about SEN of the child and explains how these requirements will be met with. The term SEN was first introduced by the Warnock Report of the late 1970s. Earlier, disabled students who needed special education were taken care of by 1944 Education Act where it stipulated ten categories for identification of children with SEN.

The following were the definition of ‘handicap’ given by the 1944 Education Act.

  • Partially sighted/Blind
  • Delicate
  • Deaf
  • Educationally subnormal
  • Diabetic
  • Epileptic
  • Physically handicapped
  • Epileptic
  • Speech defect
  • Mal adjusted

There had been a radical change in formulation of special-education concept by the Warnock Report in 1978, which emphasised that a student’s educational requirement should be given first priority instead of individual’s learning impairment or disability. As of date, in the background of educational provision, the phrase SEN has a legal meaning which connotes to children who have learning disabilities or difficulties that make it more arduous for them to access or learn education compared to other children of the same age. In 2001 the Special Educational Needs and Disability Act established the legal rights for disabled student by amending the Disability Discrimination Act of 1996. This act protected SEN and disabled students from discrimination in all educational settings

The Equality Act 2010

The Equality Act 2010 (herein after will be referred as EA) came into force with effect from 1st October 2010 in U.K, thereby grouping, harmonising and reshuffling 9 earlier Acts (The Race Relations Act (1976), The Race Relations Act (1076), Equal Pay Act 1970, The Race Relations Amendment Act (2000), Gender Discrimination Act , Equal Pay Act (1976) , The Human Rights Act (2000) , the Employment Equality (Sexual Orientation) Regulations 2003 , the Employment Equality (Religion or Belief ) Regulations 2003 and the Children’s Act (2004) and more than one hundred sets of regulations legislated over forty years. Some of the unique features of EA 2010 are as follows;

  • The EA has developed a different definition of disability. The definition almost analogues to that of the Disability Discrimination Act 1995 with following two chief exceptions;
  • Now, the precondition that a mental impairment should be clinically well-acknowledged illness has been removed.
  • The exhaustive list of what tantamount to day-to-day activities has been removed.

The outcome of the relaxation of the meaning of disability is that more children with SEN are now legally being treated as disabled. Under EA 2010, every public authority, including educational institutions are required to publish necessary Equalities Policy information and the school should take into account the following protected characteristics;

  • Sex (gender)
  • Disability
  • Maternity and pregnancy
  • Race (ethnicity)
  • Sexual Orientation
  • Religion and belief
  • Gender Reassignment

The EA 2010 expands the meaning of discrimination. In the earlier Acts, there existed two varieties of disability discrimination. These were;

  • For a reason connected to their disability without justification, treating a disabled pupil or prospective pupil less favourably than another disabled person.
  • Not taking any adequate steps to avoid placing disabled pupils at a considerable drawback contrasted to non-disabled children.

Under EA (2010), the meaning of unlawful discrimination has not been changed in a major way but there is new terminology to explain discrimination;

  • Direct discrimination: when a student is treated less favourably than another student due to a protected trait.
  • Indirect discrimination: apply for a criterion, provision or practice in the same manner for a group of pupils but, which has the impact of putting students sharing safeguarded traits at a specific disadvantage, and one cannot rationalise the practice as being ‘proportionate ways of validating a lawful objective’.

Further, the EA (2010) speaks about the discrimination by perception and discrimination by association and also introduces a new phenomenon ‘discrimination emanating from a disability’ which restores disability associated discrimination under the earlier Disability Discrimination Act, 1955.

How EA 2010 Differs from Earlier Acts

The EA (2010) now declares it is illegal to discriminate against an individual with a disability for a reason that is associated to their disability. The EA also makes it illegal to have regulations, practices, policies and rules that are applicable to each and every one, but which specifically disadvantage people with disabilities. All schools in U.K are required to make suitable fine-tuning to permit students with disabilities to take part in the educational activities fully in their schools. The EA now places three important duties on schools in U.K., which are as follows:

  • Less Favourable Treatment
  • Students with disabilities should be treated at par with non-disabled children
  • Reasonable Adjustments

Supporting the EA, Hills (2013 :2 p13) stipulates that ‘Children with disabilities are authorised to have adequate adjustments made in respect to admission facilities or in receiving the education and associated services, to stop them from being placed at a considerable difficulty, unless the rebuttal to make these fine-tunings can be justified’.

Definition of disability under the EA

The EA (2010) defines a disability as a physical or mental impairment which has a substantial and long-term (i.e. has lasted or is likely to last for at least twelve months) adverse effect on a person’s ability to carry out normal day-to-day activities. The categories indicated are now clearly defined by the EA and evidenced from the Equality and Diversity UAS (2014 p1).

Physical impairment includes sensory conditions such as visual or hearing impairment, as well as a range of health conditions, including HIV, cancer, diabetes, multiple sclerosis, and heart conditions.

Mental impairment includes mental health difficulties such as depression, anxiety disorders, psychotic illnesses, and eating disorders’.

Equality and Diversity UAS (2014) also indicates that disabilities covered by the Act can also include;

  • Conditions such, as Asperger Syndrome and other Autism Spectrum Disorders. According to Equality and Diversity UAS (2014) specific learning difficulties will also now be included under the EA. These will include Dyslexia, Dyspraxia, and Attention Deficit Hyperactivity Disorder (ADHD). The EA will require schools to assess these students and make the necessary provision under SEN. Therefore the EA will have had an impact upon the students who will be assessed as disabled and need SEN adjustments within schools.
    Equality and Diversity UAS (2014) then further defines what can be classed as a disability under the EA.
  • A long-term is defined as a disability where effects last at least 12 months
  • Temporary conditions which are likely to last less than 12 months will not be covered by the EA. These could include temporary infection or a broken limb. However, some adjustments may be made within school to accommodate such conditions.
  • Normal day-to-day activity includes activities which are carried out by most people on a fairly regular and frequent basis, for example using the stairs.

How does the EA define Disability and Special educational Needs (SEN)?

One important aspect of the EA (2010) is that not all children who are defined as disabled will have Special Educational Needs. For example, those with asthma arthritis or diabetes may not have SEN but may have rights under the EA. The EA (2010) definition for schools for disabled students comes from the EA and the definition for SEN students comes from the Education Act 1996. The impact on schools will be that there will be a significant overlap between the two groups of children. A child may fall within one or more of the definitions. The Department of Education defines children with SEN as children have a learning difficulty if they:

  • Have a significantly greater difficulty in learning than the majority of children of the same age
  • Have a disability which prevents or hinders them from making use of educational facilities of a kind generally provided for children of the same age in schools within the area of the LEA. Special Educational Needs and Disability Act (2001)

SEN, disabled or both?

One of the major issues for school will be the overlap of students who will be identified as having SEN needs but who will also be defined as disabled by the Equality Act. The Learning Trust’s Approach to SEN (2009) indicates those students with SEN needs will come under the Education Acts and SEN Code of Practice, where their needs will be identified and appropriate measures adopted. Those students within schools who are identified as disabled will be covered by the EA (2010) ensuring that they will not be discriminated against. These schools will also have responsibility for promoting equality between disabled and non-disabled students.

For educational institutions the effect of the EA this means that there has to be adequate transition practices in place with liaison between all service providers to ensure that students’ needs are and will be met.

The Learning Trust’s Approach to SEN (2009) also then discusses the issue of disability and SEN, where there may be an overlap between the needs of both groups of students. ‘A disability might give rise to a learning difficulty that calls for SEN provision to be made for a child. Many children who have SEN will also be defined as being disabled under the EA. However, not all children who are defined as disabled under the EA will have SEN. For example, pupils with severe asthma, arthritis or diabetes may not have SEN but will have rights under the EA. Similarly not all children with SEN will be defined as having a disability under the EA’.

This therefore demonstrates clearly the overlap whereby a child may fall within either one or more of the definitions.

The diagram below assists in explaining the difference between SEN and disability and where they overlap. According to The Learning Trust’s Approach to SEN (2009) demonstrates how useful this overlap can be when assessing the effect the EA has had on provisions made for those disabled students who require SEN considerations. As illustrated by O’Mahony and R.Rieser (2001) a large number of students will be classified as both SEN and disabled. They will access the EA under the terms of anti-discrimination measures and reasonable adjustments.

Data for SEN students

Statistics from the Department of Education SFR (2013) indicate that there are 216,030 pupils who have statements who attend state-funded educational institutions in 2012/13. Statistics indicate that the most common primary type of need was autistic spectrum disorder which accounted for 21.9 per cent of all pupils with statements and the least common was multi-sensory impairment with 0.2 per cent of these students having statements. 462,045 pupils were identified as being at School Action Plus, where the most common types of need were behaviour, emotional and social difficulties, moderate learning difficulty and speech, language and communication needs the least common were multi-sensory impairment and profound and multiple learning difficulties.
This data is useful for understanding how students will be who are classified as both SEN and disabled will have be covered by the EA. That reasonable adjustment will have to be considered before admission and schools will have to be aware of the need to eliminate discrimination, victimisation and harassment.

The above graph is again from the Department of Education SFR (2013) and it indicates the percentage of pupils with each primary type of SEN amongst those who were at School Action Plus and with statements in 2012/13. This graph clearly demonstrates the overlap between SEN and disabled and therefore those students who will be protected under the EA.

As of January 2010 those students with Special Educational needs was estimated to be around 11.9% to 33.5% in U.K. The established categories of SEN are : moderate learning difficulty , specific learning difficulty , acute learning difficulty , multiple and profound learning difficulty , social , emotional and behavioural difficulties , communications , speech and language needs , visual impairment , hearing impairment , physical disability , multi-sensory impairment and autistic spectrum disorder. As per EA (2010), a person with disability an individual who has a mental or physical impairment that has a wide-range and long-run negative impact on his capability to exercise the normal day-to-day functions. The definition of disability under EA (2010) includes Tourette’s syndrome and those with communication issues. EA suggests that, about 6 to 7% of the children are disabled. Some research indicates that around 75% of the disabled students also have SEN. Under EA 2010, a duty is imposed on public sector bodies and schools to determine how they can eradicate discrimination, support equality of opportunity and to develop good relations as regards to disability. As per Department for Education and Skills (2004), the figures of students with social, behavioural and emotional difficulties has soared by 23% between 2005 and 2010 and in 2010, about 158,000 students were classified as having learning difficulties. According to the D of E SEN SFRs (1995) to (2010) and Department for Education and Skills (2004), students with SEN without statements increased from 10 % of all students in 1995 to 18.2% or 1.5 million students in the year 2010 in U.K. As per Lamb Inquiry (2009), SEN can occasionally be ‘uncooperatively pooled’ with falling behind and this may have resulted in the ever increasing figures of students at Action Plus and School Action.

A major effect of the EA for schools is that where students are included in the protected characteristics, action must be taken to address any SEN issues and support these students in accessing and achieving their potential.

What does the Equality Act require of schools?

According to The Sec Ed (2013) the EA will have an important effect with regards to SEN as it covers all aspects of school life to do with how a school treats pupils and prospective pupils, parents and carers, employees and members of the community Schools have to make sure all policies, procedures and the ethos of the school must be fair, and comply with the EA by being non-discriminatory and ensure that no protected characteristic is not put at a disadvantage. These means that any school must not discriminate harass or victimise a pupil or potential pupil.
Schools now have to use the EA in relation to:-

  • Admissions
  • The way it provides education for all pupils
  • How it provides pupils access to any benefit or service
  • Excluding a pupil or subjecting them to any other detriment

How has the EA effected Admissions for SEN students schools?

Provision under the EA (2010) states that admission arrangements for all students must be fair and not unfairly discriminate either directly or indirectly, a child with a disability or SEN. This clearly means that all schools must develop policies and practices that will promote equality for all students including those protected by the EA. According to (Hills 2012 p37) ‘It is never unlawful discrimination to treat a pupil with a disability more favourably than a non-disabled pupil because of their disability’. Students with SEN, who do not have a statement, must be educated in mainstream schools apart from exceptional circumstances. The Code of Practice (2001) when discussing school admissions states that admission authorities should not make ‘subjective judgments’.This means that an admission should not be made on an individual’s perception of a student’s particular disability. The EA (2010) supports the Code of Practice by stating that it is unlawful for the school to discriminate against or victimise a person, in the arrangements it makes in deciding who is offered admission to school and with regards to the terms on which it offers to admit a pupil.

Study from Code of Practice for Schools (2001 p5)

‘A pupil seeking admission who has Tourette’s syndrome is being interviewed for a place at the school. He makes inappropriate comments during the interview and for this reason is not selected for admission. The fact that the school did not know that the pupil had Tourette’s syndrome may not be a defence because no attempt was made by the school to establish if there was a particular reason for this behaviour. His could constitute unlawful discrimination arising from a disability’.

This case study and that the C of P clearly state that all SEN students must be treated fairly within schools’ admissions policies and without discrimination as described in the Equality Act.

What actions stated in the EA have an effect on SEN students in schools?

As previously mentioned the EA (2010) brought together the numerous anti-discrimination laws and the EA makes it illegal to discriminate against a person with a disability. Within schools it is illegal to adopt policies which maybe illegal against students with a disability.

Direct discrimination as described under the EA would involve less favourable treatment ‘because of a protected characteristic’. The EA (2010) is clear that any form of direct discrimination cannot be justified. Direct discrimination can arise from unconscious prejudice.Schools under the EA, cannot make assumptions about individual students within protected characteristic groups.
‘Within schools direct discrimination is related to a child’s disability, for example, not allowing a child with a disfigurement to appear in a school play because of their looks. Direct discrimination is unlawful, irrespective of the schools motives or intentions, and regardless of whether the less favourable treatment of the child was conscious or unconscious’. (Hills 2012 p14).

Indirect discrimination as per the EA (2010) can have effects on SEN students within mainstream schools. This form of discrimination applies to disability (and gender reassignment). ‘Broadly, this means that it is unlawful to apply a policy or practice that puts those who share a protected characteristic at a particular disadvantage’.According to The Equality and Human Rights Commission (2010) if a school puts into place a policy or practice which applies to all children but which is a disadvantage to children with disabilities, then indirect discrimination will have been deemed to have occurred if the school cannot show that the policy is justified.. An example might be a school having a rule that all pupils must be able to make their own way to and from after school clubs independently. There are certain disabled and SEN students who would find this task difficult, therefore this is indirect discrimination.

Harassment is also prohibited under the EA (2010) and the act states clearly that there are three types of harassment against disabled students that are not allowed. The EHRC Creating a fairer Britain (2010) describes harassment, which is now prohibited as the following;

  • Harassment related to a relevant protected characteristic is unwanted behaviour and which has the purpose or effect of violating a pupil’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the pupil. In the case of most schools this will include disability, race and sex.
  • Sexual harassment under the EA is described as unwanted behavior which is of a sexual nature and which has the purpose or effect of violating a pupil’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the pupil
  • Less favourable treatment of a pupil because they submit to or reject sexual harassment or harassment related to sex.
  • Harassment occurs if someone engages in unwanted behaviour that is related to a child’s disability and which violates the child’s dignity. It is not necessary for the child to say that they object to the behaviour for it to be unwanted. It also includes situations where the student is associated with someone who has a disability or is wrongly perceived as having a disability’. Hills (2012 p26)

For students with SEN the EA also makes provision for treating pupils more favourably.

The EA (2010) clearly insists that a school must take action to enable or encourage a student with a disability to overcome a disadvantage. Schools must take effective action to help disabled students including SEN to meet their needs. Schools must also identify areas where activity by disabled students is disproportionately low compared to non-disabled students and take action to encourage them to participate in this activity.

Hills (2012), states that it is never unlawful discrimination to treat a pupil with a disability more favourably than a non-disabled student pupil because of their disability.

‘A non-disabled student cannot bring a claim of discrimination against the school in this case. This is called ‘positive action’. It means a school can lawfully provide additional education, benefits, facilities or services, separate facilities, targeted resources or opportunities to benefit pupils with disabilities only, and your school can offer them on more favourable terms’. Hills (2012 p 27)

Reasonable Adjustments for SEN students schools

An important effect of the EA with regards to SEN students and provision is the requirement for schools to ‘advance equality of opportunity’ between pupils with disabilities and their non-disabled peers. Reasonable adjustments can be a good way of addressing this issue. Under the EA schools and education authorities have a duty to provide reasonable adjustments for all disabled students since 2002, originally under the DDA (1995) and from October 2010 under the EA. From September 2012 the reasonable adjustments duty for schools includes a duty to provide auxiliary aids and services for disabled pupils.

The EA (2010) states that schools have a duty, which is now legal, to take positive steps to make sure that pupils with disabilities are able to participate in all aspects of school life. If schools fail to make reasonable adjustments to ensure that disabled and non-disabled pupils have equal access in admission arrangements and to education services then this would be viewed as unlawful.

The reasonable adjustments duty requires schools:

  • To have vision and values based on an inclusive ethos. This allows all involved within the school to effectively act upon and make reasonable adjustments
  • To anticipate the barriers that disabled pupils may face by actively identifying barriers as early as possible and exploring solutions. A school can then identify more effective reasonable adjustments.
  • To remove or minimise them before a disabled pupil is placed at a substantial disadvantage.

The Reasonable Adjustment Duty demands that schools foresee the necessary changes to fulfil the requirements of disabled students both in policies and practice. Senior managers and Head teachers are required to make reasonable adjustments with strong values and vision. The school staff should frame practices, which are adjusted to minimise barriers for the disabled students in all respects of school life, taking into account the concerns of the students, having good relationships with parents and other students, good understanding with professionals who are coming from outside the school which includes specialist staff from local schools and are being used as sources of ideas, information and practices.

Expertise in schools is normally developed by making practical alterations on a trial-and-error method, with assessment, supervising and considering the views of the students’, offering feedback for further fine-tuning. The teaching staff are required to make reasonable adjustments within their teaching and learning environment. This could be as simple as using a larger font for a visually impaired student, access to coloured overlays and the use of electronic reading pens. One important effect of the EA is the requirement for schools to ‘advance equality of opportunity’ between pupils with disabilities and their non-disabled peers. Reasonable adjustments can be a good way of addressing this issue.

The duty of an educational institution is to determine whether their provision places a disabled student at a major disadvantage in contrast with non-disabled students. A major or a substantial disadvantage is explained in the Equality Act as one that is more than inconsequential or minor. As a result, the main objective of the duty is not to confer an inequitable advantage on disabled students, but to eliminate barriers to learning, where it is reasonable to do so. The duty imposed on an educational institution (herein after referred as EI) is anticipatory and the EI should not wait until adjustments are suggested, but to make sure, wherever possible, that adjustments or alterations to policies, procedures and practices have been made in advance to stop disabled students being at a major disadvantage. No legal defence is available for an EI for its failure to make a reasonable adjustment, and it would be regarded as discrimination under section 21 of the EA 2010.

Reasonable adjustments should be made to present academic programmes or practices that offer students with the chance to effectively demonstrate their capabilities. Adjustments should cover a broad range of elements but not restricted to adjustments to teaching and evaluation processes.

Reasonable adjustments will be directly related in consideration of the individual student and will include the student in discussion of probable courses of action. What is reasonable for an educational institution will differ on the basis of wide range of factors and will rely upon the individual circumstances. Reasonableness includes the efficacy of initiating specific steps in facilitating the student to surmount the particular disadvantage, for example, health and safety issues, the impact on other students and the relevant financial implication to the EI.

Thus, reasonable adjustment implementation intends to stop the disabled student from suffering major disadvantage as a result of their disability and hence to permit them to accomplish their maximum potential but, in explaining ‘reasonableness’, EI are not needed to compromise ‘competence norms’. As per EA (2010), ‘competence standards’ are explained as the ‘medical, academic, or other norms applied for the purpose of assessing whether or not an individual has a specific level of ability or competence’.

According to the EHRC (2010) many of the reasonable adjustments that schools are already making for disabled pupils undoubtedly include the use of some auxiliary aids, such as coloured layovers for dyslexic pupils, pen grips, adapted PE equipment, adapted keyboards and computer software.

Accountability for schools under the Equality Act

All schools under the Disability Equality Act 2005 and now subsumed into the Equality Act 2010 have to ensure that all public bodies, therefore, schools have to pay ‘due regard’ to the promotion of equality for young people with disabilities. The EA has two distinct elements that apply to all educational institutions within the UK, a general duty and a specific duty. The EHRC can take action against any schools that do not meet their duties. Hills (2012)

Schools must be aware of the requirement under the general duty to have due regard when carrying out their duties to;

  • Eliminate discrimination, harassment and victimisation
  • Advance equality of opportunity between people with disabilities and non-disabilities
  • Foster good relations between disabled and non-disabled people.

All staff, students, parents and users of the educational institutions have to comply with this general duty with regard to disabilities.

The specific duty requires schools to show how they are meeting the general duty. The specific duty is about how a school sets out to meet its general duty and how this evidence will be recorded to show what the school has done.

The specific duty requires schools:

  • To publish information to indicate how they are complying with the Public Sector Equality Duty.
  • To prepare and publish one or more specific and measurable equality objectives. These objectives must be achievable within the context of the school and available resources. (Hills 2012)

An example of a measurable objective would be;

By the end of 2014-2015 the % of SEN students at SA+ achieving GCSE Mathematics will increase from 36.4% to 40%.

Strategies will then need to be identified showing how the staff and school will aim to achieve this objective.

The Equality Act and effects on SEN provisions within schools

The EA has now strengthened the promotion of inclusion within mainstream schools through anti-discrimination procedures and reasonable adjustment requirements. This now legally requires schools to ensure provision of additional support for learning when any child or young person needs support for whatever reason. The EA has reinforced previous legislation introduced in the 1990’s with regard to inclusion in schools for students with SEN and disabilities. From 1994 onwards there was an annual increase of SEN students being educated in mainstream schools.

‘The UN Convention on the Rights of the Child (1989) and the UN Standard Rules on Equalisation (1993) both unequivocally support the right to equal treatment for all and view this as a right to mainstream education’ (2004)

In support of the UN Convention above, The Salamanca Statement was adopted by the UK government and in Excellence for All; The Programme of Action and Removing Barriers to Achievement have supported the development of inclusion.

UNESCO (1994 p7) stated ‘that those schools that had adopted inclusive policies are the most effective means of combating discriminatory attitudes, creating welcoming communities, building an inclusive society and achieving education for all. Moreover, they provide an effective education for the majority of children (without special needs) and improving the efficiency and ultimately the cost effectiveness of the entire education system’.

In implementing the EA, Educating Scotland (2012) also supports the philosophy of inclusive education. They stipulate that inclusion rather than integration demonstrates a move away from seeing disabilities as a ‘deficit model’. The emphasis through the EA is more about recognising the whole person rather than focusing on the learner as being deficient in some way due to their disability. Individual students under the EA should not be catagorised but adjustments introduced which will allow the same opportunities as non-disabled students.

In support of UNESCO, Pupil Support and Access (2001 p2) demonstrate the importance of inclusion. ‘Schools supported by local education authorities and others should actively seek to remove the barriers to learning and participation that can hinder or exclude pupils with SEN. Schools and local education authorities that are successful at including pupils with special educational needs meet those needs in a positive and proactive way. They also approach inclusion as part of their overall improvement strategy. Inclusion is far more than just about the location of a child’s school placement’.

The above statements strongly support the EA’s ideals of inclusion and provisions for SEN students in mainstream schools. The emphasis and legal requirements are now clearly focused on schools making sure they provide the necessary support and adjustments for all SEN and disabled students.

How effective is Inclusion?

Developing inclusion involves students, professionals, partners, parents, carers and the wider community. According to Goodland and Lovat (1993) students with impairments or disabilities do better academically when they are able to socialise with their non-disabled peers during instructional time. Supporting evidence from Goor and Schwenn (1993) also indicate that the interaction between students with or without disabilities enhances academic achievement for students with disabilities.

Inclusion and Pupil Achievement Department for Education Skills RR578 (2004 p50), clearly argues that ‘LEAs with high rates of inclusion in mainstream did no worse than those with low rates of inclusion in national tests. At KS 4 in 2002 average point score was 38.55. For non statemented pupils with SEN, in mainstream, it was 21.85. For statemented pupils in mainstream it was 16.99 and for pupils in special schools it was 2.4 points 7 times worse. Add to this the impact of social isolation and low self-esteem it is understandable why 50% or 2.9 million disabled adults of working age are not working many of whom attended special schools’.

Recent government statistics from Department for Education Statistical Release (2013) indicate that the attainment gap is narrowing between Level 2 achievement in English and Maths from 2010/11 and that in 2011/12. In 2011 22.4 % of pupils with any SEN achieved level 2 in both subjects whereas 69.2 % of those with no SEN, which is an attainment gap of 46.8 percentage points. In 2010/11, the equivalent statistics were 22.1% with SEN and 69.5% without SEN, a gap of 47.4 percentage points. Both statistics would suggest that inclusion of SEN students in mainstream schools is improving attainment, self-esteem and life chances. Therefore this would suggest that the implementation of the EA has had a positive impact on the inclusion of SEN and within that group, disabled students, improving their attainment

What next for SEN provision in schools?

The Lamb Inquiry was set up by the government in 2009 to investigate parental views of the SEN system and improvements that could be introduced. Parents and students were interviewed and were asked about their experiences of provision. According to Lamb (2009) the SEN system was in need of a radical overhaul, and the focus for SEN and disabled students had to have a greater emphasis on the outcomes and progression for these students after school. It also stated that there has to be a stronger voice for parents in order to build confidence in the system and that schools have to be more accountable through monitoring and reporting. Lamb (2009) states that a school cannot be a good school unless it caters properly for all children it is there to serve.
The latest SEN initiative to be introduced is the Children and Families Bill which according to The Secretary of State for Education (2013 p3) ‘the Bill has a dual focus on vulnerable children and to put ambitions for strong families at the heart of those ambitions. The government hopes that the measures will improve services for vulnerable children and transform the special educational needs system. The promotion of children’s rights is to be the main issue for the Bill’.

The Equality and Human Rights Commission (2012) was asked to analyse the Children and Families Bill to ensure that the government’s proposals would comply with the requirements of the Equality Act 2010 and the Human Rights Act 1998. They also assessed the Bill to ensure it complied with the UN Convention on the Rights of Persons with Disabilities (UNCRPD), and in particular, Article 24 requirement that the education system is directed to the development by persons with disabilities ‘of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential.

The Commission’s analysis was that the aims of the Bill were in accordance with the requirements of the Equality Act 2010, the Human Rights Act 1998 and UNCRPD. These aims are;

  • To reform SEN provision.
  • To place children, young people and families at the centre of decision making, enable them to participate in a fully informed way, and with a focus on achieving the best possible outcomes.

The EHRC (2012) also emphasised the fact that the Bill provides an opportunity to strengthen compliance with the Equality Act 2010 in relation to duties on education providers to make reasonable adjustments for children with disabilities, and to set out how the new SEN arrangements and the Equality Act requirements can work together to make educational provision for disabled children fit for purpose, and in line with the requirements of the UNCPRD. Statements of SEN are to be replaced by new Education, Health and Care (EHC) Plans. However, some would argue that more clarity is needed with regards to the Bill and in the Code about how the support needs of disabled pupils without an EHC plan, who currently receive support under School Action or School Action Plus, are to be met.

The EHRC (2102) stated that they were aware that government is introducing these changes to address concerns from Ofsted (2010) that pupils are being given SA and SA+ support when actually what they need is better teaching. Ofsted stated in its report of (2010) that as many as half of all pupils identified for School Action would not be identified as having SEN if schools focused on improving teaching and learning for all, with individual goals for improvement.

The Children and Families Bill became law on 13th March 2014 and makes changes to the way in which support is provided to children and young people with Special Educational Needs.
The Department for Education (2012) declares that the aim is ‘to give good support to children and young people with SEN, and their families. Children and young people with SEN can find it harder to learn than other people their age. They can need extra help. This support could go right up to when they are 25 if they need longer to finish their education. This means simpler ways of assessing what children and young people need. It means getting health and social care services to work together better. It means giving children and young people themselves, as well as their parents, more choices about the help they get.’ Wired Putting You First (2013 p2)

As indicated by The Children and Families Act (2013)

Provisions for SEN students must now include:

  • Creating a new duty which will require local authorities and health bodies to work together when arranging provision for children and young people with SEN.
  • Set out the requirements relating to the provision and implementation of EHCPs.
  • Requires local authorities to prepare a personal budget for children or young people with an EHCP if asked to do so by the child’s parent or the young person.
  • Places a requirement on local authorities to publish a “local offer” of services they expect to be available for children and young people with SEN.

The Council for Disabled Children (2014) looks at this as a new approach to SEN and disability and the Next Steps document signal the Government’s intention to require local authorities to set out a local offer.

‘The purpose of the local offer is to enable parents and young people to see more clearly what services are available in their area and how to access them. The offer will include provision from birth to 25, across education, health and social care and should be developed in conjunction with children and young people, parents and carers, and local services, including schools, colleges, health and social care agencies’. The Council for Disabled Children (2014 p5)

Council for Disabled Children (2014) has noted that the local offer has the potential to

  • provide clarity and confidence for parents;
  • support earlier intervention;
  • reduce the need for assessment: a number of local authorities make a minimum level of short breaks provision readily available, and without costly assessment processes. This meets the needs of many families;
  • identify need and gaps in provision;
  • provide an evidence base for improving progress and securing better outcomes, at school and local level.

Under the provision of The Children and Families Act (2013) the purpose of the local offer will allow parents to have as much information about services that are available and therefore give more choice and more control over what support is right for their child. This local offer will impact on the provisions made within schools for students covered by the EA whereby all agencies, parents and schools will have to be more involved in the process of support.

Conclusion and Recommendations.

The aim of this dissertation was to look at the effects of the Equality Act 2010 on SEN students in mainstream schools. Evidence available from the Department for Education Green Paper, Support and Aspiration, in January 2010 indicate that, 21% of the school population were identified as having SEN:11.4% receiving School Action provision, approximately 916,000 pupils; 6.2% receiving School Action Plus provision, approximately 496,000 pupils; and 2.7% of the school population or 221,000 pupils had a statement of SEN. This SEN grouping will include those students identified and protected by the EA.

Throughout research undertaken, SEN provision has changed significantly over the past 50 years. The Warnock Report in 1978, emphasised that a student’s educational requirement should be given first priority instead of individual’s learning impairment or disability. As per EA 2010, all schools in U.K are required to make reasonable adjustments to permit students with disabilities to take part in the educational activities fully in their schools. The EA has strengthened and defined provision for students who are SEN or disabled, and who now have more legal protection in law. Schools are clear about their legal requirement to protect students from direct, indirect discrimination, harassment and victimisation. In U.K, SEN programmes chiefly consist of demanding schools to recognise students with learning difficulties and then to fine-tune their academic strategies. Schools have to set measurable objectives which clearly concerned with outcomes and life chances for SEN students. The main objective of the EA is not to confer an inequitable advantage on disabled and SEN students, but to eliminate barriers to learning, where it is reasonable to do so.

Thus, EA 2010 underpins all future reform and developments within SEN and disability provision. The Children and Families Law has been introduced to eliminate any gaps within the EA with regards to SEN provision. By closely aligning the EA 2010 requirements with the new SEN framework arrangements, schools should be able to make the improvements to learning support that the Children and Families Law offers, available to all young disabled people who can benefit from them.

Further research will have to take place to assess the new proposals to replace statements of SEN with EHC plans, it is unclear as to what support arrangements will be available for the approximately 16% of the school population who have SEN provision, but do not currently have a statement. Research will need to be undertaken to look at provision to close attainment gaps through identification of SEN students and the support provided through the new framework. Also examination of disabled students and their reasonable adjustments to ensure they do not regress. It will be advantageous to assess how EHCPs will work with regard parental perspectives and the budgeting implications of the EHCP.

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