Abstract
The current approach to meeting Special Educational Needs (SEN) in England and Wales was inspired by the Warnock Report of 1979 and introduced by the Education Act 1981.2 The legislation provided a framework for the identification and assessment of SEN and gave pupils with serious or complex needs the right to resources necessary to address their learning difficulties. Subject to important qualifications, it also introduced a presumption in favour of the education of pupils with special needs being in mainstream schools.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
Reference
This was updated by the Education Act 1993 and consolidated in the Education Act 1996 which is itself updated by SENDA and remains the source of the primary legislation. Gooding, C (1996) Blackstones Guide to the Disability Discrimination Act 1995 Oxford: Blackstone Press. A House of Lords Bill, sponsored by Lord Ashley of Stoke, which aimed to update the DDA in 2002, has suffered the same fate as the pre 1995 attempts to get reforms through Parliament using private members Bills.
Brief accounts of the effect of SENDA can be found in Hay, D. The Special Educational Needs and Disability Act 2001 [ 2001 ] Ell 72 and Linden, T. “Disability Discrimination in Education: The New Law” [2002] Ell 82.
SENDA also extends the provisions of the DDA to post-16 education as ss 28R to 28Q DDA. Consideration of this is outside the scope of this paper.
Defined below.
Discussed below.
Section 324(5)(a)(î).
Schedule 27, para 3 provides that the statement shall name the parents preferred school unless the school is unsuitable for the child or incompatible with the proven efficient education of other children, and section 324(5)(b) states that if the school is named in the statement the child shall be admitted.
A recent discussion can be found in Monk, D. (2002) “Children’s Rights in Education — making sense of contradictions.” Child and Family Law Quarterly 14: 45–56. A detailed account is available in Harris, N. ( 1997 ) Special Educational Needs and Access to Justice. Jordans: Bristol.
Within the meaning of the DDA.
Part II of the DDA relates to employment, Part III to goods and services.
Following Staffordshire University v Morgan [ 2002 ] IRLR 190 where a disability has a psychological cause it must result from a “clinically well-recognised” condition. See also Goodwin v The Patent Office [1999] IRLR 4.
O’Neill v Symm Co. [1998] IRLR 233.
This includes severe facial disfigurement and conditions that have been corrected (except for sight defects that are corrected by spectacles or contact lenses), schedule 1, and certain past disabilities, s 2 and schedule 2. See Greenwood v BA [1999] IRLR 600.
Schedule J.
As is any form of addiction except where it is the result of administering medically prescribed drugs or other medical treatment.
Goodwin v The Patent Office It has been recognised that just because a person can carry out activities it does not mean that the ability to do so has not been impaired Goodwin v The Patent Office. However a man who could not lift heavy weights at work following heart surgery did not come within the definition because he was capable of lifting every¬day objects. Quinlan v BQ (1999). ( Lawtel )
Goodwin v The Patent Office.
The DDA also covers progressive conditions, but only from the point where the condition has some effect. In cases such as Cancer, Muscular Dystrophy, Multiple Sclerosis or AIDS, protection of the Act is available as soon as any symptoms appear. It does not matter if the effects are not yet substantial. Nevertheless this does not protect sufferers while symp¬tom free. Conditions such as HIV infection are likely to attract discrimination even though the sufferer may be symptom free for a long period or even indefinitely, this is not covered. Equally the Act is incapable of addressing discrimination against those with a genetic pre-disposition to a condition.
Plus certain children under the age of 5 and under the age of 2. Difficulties based solely on differences between the home language and the language the child is taught in are not to be regarded as learning difficulties.
For example, the highly intelligent pupil with dyslexia who is not significantly disabled by the impairment.
Sections 5(1)(b), 5(2) and 5(3).
Doyle, B. (1996) Disability Discrimination Law and Practice 2nd. ed. Jordans: Bristol c.f. Heinz y Kenrick [2000] IRLR 144. See Linden, T. op. cit.
Found in s 20(4).
Jones y Post Office [2001] IRLR 384. According to Linden op. cit the same principle should apply in education cases.
Reasonableness in this context would be Wednesbury unreasonableness. Decisions that are so unreasonable that no reasonable authority would make them. See footnote 62, supra.
Section 6(1)(b), The duty to adjust arrangements refers only to arrangements for deter¬mining whom employment is offered to, or any term condition or arrangement relating to promotion, transfer, training or any other benefits offered or afforded, see sections 6(2) and 6(1)(a). However, the duty has been interpreted as including a duty to make arrange¬ments that will allow a disabled employee to remain in employment Morse y Wiltshire op. cit. The following count as physical features: any feature arising from the design or construction of a building or premises; approach to or exit from or access to such prem¬ises; fixtures, fittings, furnishings, equipment and materials in or on the premises; and any other physical element or quality of any land comprised in the premises, Disability Discrimination (Employment) Regulations 1996, SI 96/1456.
New section 28C(6).
The landmark race discrimination case Mandla y Dowell Lee [1983] 1 All ER 1062 was brought against a school in the names of the child and his parent.
SI 2001/600 Regulation 13(2) and 30(2).
The effect of the new procedures in the regulations is discussed by Aldridge, T. “Special Educational Needs Tribunal: New Procedure” [2001] Ell 131.
SI2001/1985.
This point was raised in the committee stages of the Bill’s passage through Parliament. Margaret Hodge refused to concede a right of the child to bring a claim in his or her own name. She suggested that the disability procedure regulations would contain the equiva¬lent of regulations 13 and 30 but in the event these participation rights are absent. Standing Committee B 3 April 2001.
Eekelaar, J. (1986) “The Eclipse of Parental Rights.” 102 Law Quarterly Review 4; Furniss, C. and Blair, A. (1997) “Sex Wars: Conflict in, and Reform of, Sex Education in Maintained Secondary Schools.” 19 Journal of Social Welfare and Family Law 189–202; Harris, N. (2000) “Education law: excluding the child.” 12 Education and the Law 31–46; Meredith, P. (2001) “Editorial Comment: the child’s right to education.” 13 Education and the Law 5–8; Monk, D. (2002) “Children’s Rights in Education — making sense of con¬tradictions.” 14 Child and Family Law Quarterly 45–56.
Harris, N. (2000) “Education law: excluding the child.” 12 Education and the Law 31–46; Meredith, P. (2001) Ibid.; Monk, D. (2002) “Children’s Rights in Education — making sense of contradictions.” 14 Child and Family Law Quarterly 45–56.
Other parts of SENDA extend the DDA to Further and Higher Education.
New Chapter 2 of part 4 applies to further and higher education and includes new ss 28R–28X. New chapter 3 has miscellaneous provisions new ss 31B and 31C and various amendments to other sections of the Act.
The Secretary of State is given a power to specify any services that are to be regarded as such services, or to specify services that are not to be regarded as such services.
In general claims may only be brought by those who fall within the definition of disabil ity in the Act but victimisation claims may be brought by those who are not disabled.
Section 28B(6).
Section 28B(7).
Regulations updating the DDA to conform to Directive 78/2000 are currently found in draft form on the DTI website as The Disability Discrimination Act 1995 (Amendment) Regulations 2003. Due to come into force in the UK on 1 October 2004. See http://www. dti.gov.uk/er/equality/index.htm
Author information
Authors and Affiliations
Editor information
Rights and permissions
Copyright information
© 2003 Springer Science+Business Media Dordrecht
About this chapter
Cite this chapter
Blair, A. (2003). Special Educational Needs and Disability Discrimination: New Departures in Education Law in England and Wales: Rights of Children with Disabilities in the UK. In: De Groof, J., Lauwers, G. (eds) Special Education. Yearbook of the European Association for Education Law and Policy, vol 5. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-3050-1_4
Download citation
DOI: https://doi.org/10.1007/978-94-017-3050-1_4
Publisher Name: Springer, Dordrecht
Print ISBN: 978-90-481-6394-6
Online ISBN: 978-94-017-3050-1
eBook Packages: Springer Book Archive