What should I know about disability and special needs legislation?

last updated:March 2009

The following information about disability, special educational needs (SEN) and the law is based on the Government’s strategy for SEN, Removing Barriers to Achievement (reference: DfES/0117/2004). There is also a thought-provoking activity based on ideas about disability.

What does the Disability Discrimination Act (DDA) say about disability and SEN?

Disability

The DDA defines a disabled person as someone who has: 'a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.'

These impairments include learning disabilities, dyslexia, diabetes and epilepsy. So the definition of a disability does not just apply to people with a physical or sensory impairment, but to a much larger group of people.

SEN

The Education Act 1996 says that 'a child has special educational needs if he or she has a learning difficulty which calls for special educational provision to be made for him or her.'

It also says that 'a disability, which prevents or hinders them from making use of education facilities', amounts to a learning difficulty if it calls for special educational provision to be made. Special educational provision is provision that is additional to or otherwise different from that normally available in the area to children of the same age.

The definition includes more children than those who have 'learning difficulties' in the commonly accepted sense. This is because the definition of learning difficulties in the legislation includes children who have a disability and who need something additional or different to be provided for them. So, for example, a child with a visual impairment who needs materials to be provided in an enlarged font is defined in the legislation as having a learning difficulty even if they are not behind in their learning.

How they are related

Not all children who are defined as disabled will have SEN. For example, those with severe asthma, arthritis or diabetes may not have SEN but may have rights under the DDA. Similarly, not all children with SEN will be defined as having a disability under the Disability Discrimination Act. The Disability Rights Commission's Code of Practice for schools is helpful in explaining this in more detail.

Is Tom disabled?

Answering the four questions below will help you decide whether a pupil is disabled.

1. Does Tom have difficulty with any of the following 'normal day-to-day activities'?

• Mobility: getting to/from school, moving about the school and/or going on school visits?
• Manual dexterity: holding a pen, pencil or book, using tools in design and technology, playing a musical instrument, throwing and catching a ball?
• Physical co-ordination: washing or dressing, taking part in games and Physical Education?
• Ability to lift, carry or otherwise move every day objects: carrying a full school bag or other fairly heavy items?
• Continence: going to the toilet or controlling the need to go to the toilet?
• Speech: communicating with others or understanding what others are saying; how they express themselves orally or in writing?
• Hearing: hearing what people say in person or on a video, DVD, radio or tape recording?
• Eyesight: ability to see clearly (with spectacles/contact lenses where necessary), including visual presentations in the classroom?
• Memory or ability to concentrate, learn or understand: work in school including reading, writing, number work or understanding information?
• Perception of the risk of physical danger: inability to recognise danger e.g. when jumping from a height, touching hot objects or crossing roads?
  

2. Is Tom's difficulty caused by an underlying impairment or condition?

3. Has Tom's impairment or condition lasted, or is likely to last, more than 12 months?

4. Is the effect of Tom's impairment or condition 'more than minor or trivial'?

If you have answered ‘Yes’ to questions 1 to 4, then Tom is probably disabled under the DDA. If Tom receives medical or other treatment to reduce or remove the effects of his condition, he may still be disabled. The test is whether the effects would recur if he were to stop his treatment.

Making reasonable adjustments for disabled pupils

The following are identified as key factors by the Government’s guidance.

• Vision and values based on an inclusive ethos: An inclusive vision for the school, clearly articulated, shared, understood and acted upon effectively by all, is an important factor in helping staff to make reasonable adjustments.
• A 'can do' attitude from all staff: The attitude of staff is fundamental to achieving successful outcomes for disabled pupils. Where staff are positive and demonstrate a 'can do' approach, barriers are more easily overcome.
• A proactive approach to identifying barriers and finding practical solutions: Actively identifying barriers as early as possible and exploring the solutions using a practical, problem-solving approach has led schools to identify more effective reasonable adjustments.
• Strong collaborative relationships with pupils and parents: Schools that are effective at making reasonable adjustments recognise that parents and pupils have expertise about living with an impairment and will be a major source of advice. Pupils can also be the best judges of what is effective. They can be good advocates of what has worked well for them.
• A meaningful voice for pupils: Schools are more likely to make effective reasonable adjustments where there are strong consultative mechanisms in place for all pupils and where peer support is well-developed.
• A positive approach to managing behaviour: Combined with an appropriate curriculum and a variety of learning activities, a positive approach to managing behaviour can enable pupils to take charge of their own behaviour and support others in taking charge of theirs. Many schools identified the importance of peer support strategies and of mentoring schemes.
• Strong leadership by senior management and governors: Strong school leadership that sets a clear direction, promotes positive outcomes for disabled pupils, deploys the resources of the school to support teachers in identifying and removing barriers and keeps progress under review, makes for schools that are more effective at making reasonable adjustments.
• Effective staff training and development: Where staff training and development is given a high priority it can ensure that staff have the understanding, knowledge and skills required to make reasonable adjustments for the range of disabled pupils.
• The use of expertise from outside the school: Other agencies supplement and complement what a school can provide on its own. Schools draw on a wide range of expertise: from local schools, units and support services; from different statutory agencies; and from voluntary organisations.
• Building disability into resourcing arrangements: Disability considerations should be part of everything a school does, including the way it deploys its resources, enables everyone in the school to make reasonable adjustments.
• A sensitive approach to meeting the impairment specific needs of pupils: A sensitive approach protects the dignity of disabled pupils particularly, but not only, in relation to meeting medical and personal care needs.
• Regular critical review and evaluation: Regular reviews at pupil level, departmental level and at school level help to ensure that:  progress is monitored; successes and failures are shared and inform the next steps; the views of pupils and their parents are sought and incorporated into the reasonable adjustments a school makes.

The availability of role models and positive images of disability

Where schools use a range of opportunities to provide disabled role models, this can boost the self-esteem of disabled pupils and have a positive effect for all pupils. This can be supported by positive images of disabled children and adults in pictures, books, and a range of materials used in schools.

Promoting disability equality in schools

The DDA sets out a Disability Equality Duty  for all schools. This requires them to take a more proactive, more explicit, more involved and more comprehensive approach to promoting disability equality and eliminating discrimination.

What does this all mean in practice?

• ‘More proactive’: Schools need to move from a focus on an individual response to an approach that builds disability equality considerations in from the start and at every level of the school: at strategic, policy, management and classroom level.
• ‘More explicit’: Schools have to be able to demonstrate what they have done and what they plan to do to improve opportunities and outcomes for disabled pupils, staff, parents and other users of the school.
• ‘More involved’: Schools have to involve disabled pupils, staff, parents and others in the development of their disability equality scheme. Disabled people need to be involved from the very start and their involvement needs to inform the preparation, development, publication, review and reporting of the scheme.

Individual duties

The Disability Equality Duty actually consists of various individual duties, which need to be applied in different ways.  Schools must recognise this when they draw up their schemes.

For example: the duties in Parts 3 and 4 are owed to disabled service users and pupils in general.  This means that schools are already required to think ahead about what they may need to do for disabled service users and pupils. This in turn may mean that schools have developed a more proactive approach in these areas.

The duties in Part 2 are owed to individual disabled staff and applicants; they do not of themselves require the same level of anticipation.

In respect of Part 4 duties, schools that are already making reasonable adjustments at a whole school level and have a well-developed accessibility plan may find that they are well on the way to meeting the Duty in respect of disabled pupils.