Planning to Improve Access to Education for Pupils with Disabilities
Guidance on Preparing Accessibility Strategies
Chapter 1 - Introduction
Coverage and Responsible Bodies
1. The requirements under the new Act apply to both the state and independent sectors throughout Scotland. For the state sector, the responsible body is the local authority, referred to in the Act as the 'education authority'. However, in preparing and implementing their accessibility strategies, Councils' Education Departments will require to co-operate with Social Work Services and NHS Boards and Trusts in their area. Local authorities' strategies should cover all the schools and nursery schools for which the authority is responsible. They should also cover the provision of nursery classes in local authority centres which are not schools, such as community centres, and any education provided by the authority in portacabins on Gypsy/Traveller sites. Wherever this guidance refers to schools (which a local authority is responsible for), this should be interpreted as including nursery schools and classes, local authority nursery classes in non-school centres and any education provided on Gypsy/Traveller sites.
2. It is worth noting that local authority accessibility strategies do not need to cover pre-school education provided by private or voluntary sector providers operating in partnership with a local authority. Instead, in negotiating contracts with these providers, local authorities should ensure that providers are committed to improving access to pupils with disabilities. At the same time, these providers are already subject (as service providers) to duties under Part III of the Disability Discrimination Act 1995 (DDA). In their contracts with providers, local authorities should underline the need for the provider to comply with its duties and responsibilities under the DDA.
3. Individual local authority schools do not need to prepare their own strategies, but they should clearly be involved in the preparation and implementation of the authority's strategy and relevant elements of the accessibility strategy should be fed into school development plans.
4. For independent, grant-aided and self-governing schools, accessibility strategies will normally cover only one school, or two schools where junior and senior schools or boys' and girls' schools are linked. For independent schools, the responsible body is defined as the proprietor, although, in practice, this is the managers of the school. The responsible body for grant-aided and selfgoverning schools is the board of management of the school.
Definition of Disability
5. The Act uses the same definition of disability as the DDA 2. This states that a person is disabled if:
He or she has a mental or physical impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day to day activities. (Part I, section 1(1))
6. Therefore this means that accessibility strategies will need to cover improvements for a broad range of pupils. Appendix One of the Disability Rights Commission Code of Practice (Schools) 3 gives more details about the definition and should be referred to by those preparing strategies. In general, those pupils who are planned for through accessibility strategies will overlap closely with those considered as having special educational needs.
7. Some pupils may have disabilities as defined by the DDA, but these may be 'hidden', such as epilepsy or diabetes and are unlikely on their own to give rise to special educational needs. Other pupils with special educational needs will not be classed as disabled under the DDA, such as those with mild learning difficulties.
8. Although not all pupils with social, emotional and behavioural difficulties would be seen as 'disabled' under the DDA, a responsible body may wish to link their accessibility strategy closely with behaviour support initiatives they are undertaking, for example, through the implementation of the recommendations of the Discipline Task Group Action Plan 4. Clearly, responsible bodies are encouraged to take an inclusive approach and also to include provision for pupils who do not have a disability in their strategy.
The Legislative Requirements of the Education (Disability Strategies and Pupils' Educational Records) Act
9. The legislation requires that a responsible body's accessibility strategy must cover improving access to education for pupils with a disability or disabilities. This includes 'prospective' pupils (i.e. pupils who may well in future attend the schools) and children who are receiving pre-school education from the local authority.
10. The strategy must cover at least the following aspects of education for pupils with disabilities:
- increasing the extent to which pupils can participate in the curriculum;
- improving the physical environment of the school or schools to make it more accessible;
- improving communication with pupils of school information and, in particular, providing information to pupils with disabilities in alternative forms, both within a reasonable time and taking into account the pupils' needs and any preferences that they or their parents express.
11. Each of these three aspects is covered in detail in Chapter 2.
12. In addition, the Act states that regulations will prescribe when accessibility strategies must be prepared and what period of time they should cover. These regulations, which are expected to come into force in October 2002 and to state that responsible bodies must prepare their strategies by 1 April 2003 at the latest and the strategy period must then begin. Implementation should then start as soon as possible. The first strategies will be expected to cover a period of up to three years. They might cover a shorter period than this in order to allow them to fit into other planning cycles, such as those for National Priorities. Apart from the first accessibility strategy, all subsequent strategies should cover a three year period. Copies of the regulations will be sent out to responsible bodies for their records once they are finalised.
13. Before the end of the time period covered by the first strategy, responsible bodies will have to prepare another strategy to cover the following three year period. This cycle will continue for as long as the regulations are in force and unamended. Strategies must also be kept under review and, if necessary, revised.
14. There are also a number of additional requirements of the Act, to which responsible bodies must adhere:
15. The Act specifically states that statutory guidance is to be given on certain matters and that responsible bodies must take that into consideration. This means that responsible bodies must have regard to the guidance in relation to these statutory elements:
a) the content of accessibility strategies;
b) the form in which strategies should be produced (i.e. how the strategy is linked to other relevant plans - and what format it is produced in);
c) whom they should consult in preparing their strategies; and,
d) their duty to review and revise their strategies.
16. However, as each responsible body will be operating under, and responding to, differing circumstances, the guidance aims to offer flexibility to accommodate this.
17. Responsible bodies should consult children, young people and parents in preparing their strategy. It is up to the responsible body to decide which children, young people and parents they should consult, but this guidance gives recommendations on this in Chapters 3 and 4.
18. They need to make sure that they allocate sufficient resources to implement any changes which their strategy proposes to make. More information on this is provided in Chapters 3 and 4.
19. Accessibility strategies must be in writing and must also be made available in alternative forms (such as: orally, on audio tape, in large print, in Braille, on CD Rom or other means of electronic communication, through sign language or lip speaking or on video (using signing and/or lip speaking)) on request. Regulations will define that the forms listed above should be considered as an 'alternative form' for this purpose. In deciding whether a request must be complied with, the responsible body should also have regard to Part III of the Disability Discrimination Act and the Code of Practice 5 on this, which provides information about how it can be determined whether or not such a request is 'reasonable'.
20. A copy of each accessibility strategy must be supplied to the Scottish Executive when it is finalised to allow examples of good practice to be monitored and disseminated. Therefore, copies of responsible bodies' first accessibility strategies should be sent (by post or e-mail) to the Scottish Executive Special Educational Needs (SEN) Unit by the beginning of April 2003 (if a strategy cannot be provided by this date because it is awaiting approval by a Council's Education Committee, local authorities should inform the Scottish Executive of this in advance and send in a draft) - contact details are provided in Annex B. Copies of subsequent three year strategies must also be sent to the SEN Unit when they are finalised.
21. Strategies must also be provided on request to Scottish Ministers and their officials in the Scottish Executive (if the strategy has been revised) or to any other person who asks to see them. However, it is not necessary to send in copies of a strategy every time it is revised during its three year period. This does not mean that strategies must be published, but it does mean that they must be available in either electronic or printed format. Further information on dissemination of strategies is provided in Chapters 3 and 4.
The Legislative Framework in Scotland
Diagram 1 - The Scottish legislative framework (NB. Future legislative changes to the SEN Framework are planned).
The Disability Discrimination Act 1995
22. The Education (Disability Strategies and Pupils' Educational Records) Act will form part of a framework of Scottish and UK legislation, much of which also has an impact on school pupils and education as well as on discrimination and disability.
23. The Act promotes a strategic overview of provision and supports any changes which will be brought forward for individual pupils by the new duties under the DDA, as amended by the Special Educational Needs and Disability Act 2001 6. These new DDA duties are effective across Great Britain from September 2002. They make it unlawful for education providers to discriminate against disabled pupils and prospective pupils in the provision of education and associated services in schools, and in respect of admissions and exclusions.
24. There are two key duties involved in ensuring that education providers do not discriminate against disabled pupils:
- not to treat disabled pupils less favourably; and
- to take reasonable steps to avoid putting disabled pupils at a substantial disadvantage (this is known as the reasonable adjustments duty).
25. The reasonable adjustments duty under the DDA excludes requirements for physical alterations to be made to schools and for the provision of auxiliary aids and services (such as equipment, learning support staff and therapy services). Instead, physical alterations should be considered as part of the more strategic approach in the Education (Disability Strategies and Pupils' Educational Records) Act to improving access to school buildings and made through the implementation of accessibility strategies.
26. The provision of auxiliary aids and services will also need to be considered in the same way because they are important in improving access to the curriculum for pupils with disabilities. In education authority schools, auxiliary aids and services will continue, in most cases, to be provided under the SEN Framework ( see paragraphs 31 to 36). This is because the SEN Framework focuses on the needs of the individual child. Through accessibility strategies, responsible bodies will consider their strategic approach to the provision of auxiliary aids and services across the population of pupils with disabilities.
27. This guidance should be read along with the Disability Rights Commission (DRC) Code of Practice for Schools, which gives guidance on how the new duties under the DDA should be interpreted. It also gives a clearer picture of what adjustments school managers and local authorities should be making in order to comply with that Act.
28. In preparing their accessibility strategies, and in meeting the requirements of the amended DDA, responsible bodies will need to take into account their other statutory duties, such as those imposed by: the Health and Safety at Work Act 1974, the Fire Precautions Act 1971, the Human Rights Act 1998, the Race Relations Act 1976 as amended by the Race Relations Amendment Act 2000, the Data Protection Act 1998, the Sex Discrimination Act 1975 and the regulations made under those Acts. The bibliography at Annex A provides details of how to obtain copies of these and other Acts. Education providers must ensure that any changes they make through their accessibility strategies meet the requirements of these Acts and any other legislation.
29. The Race Relations Amendment Act placed a statutory duty on public bodies to promote race equality. Education authorities are also subject to specific duties to promote race equality in order to ensure their better performance of the general duty. As some pupils with disabilities may come from a minority ethnic background, local authorities might want to consider, for example, which materials can be made available in community languages if that is considered appropriate. This should help to avoid cases of multiple discrimination. In fact, one local authority has found it helpful to focus on a combined strategy for inclusion - which focuses both on ensuring racial equality and on promoting accessibility for disabled pupils.
30. In addition to these Acts, there is also legislation specific to Scotland which should be taken into consideration:
31. Firstly, the Education (Scotland) Act 1980 7 provides the basis of the legislative framework (known as the SEN Framework) for educational provision for pupils with special educational needs, many of whom will also have a disability. The Standards in Scotland's Schools etc. Act 2000 8 and the following guidance: Circular 4/96 - Children and Young Persons with Special Educational Needs: Assessment and Recording9 and A Manual of Good Practice10 are all also relevant to the SEN Framework.
32. The 1980 Act imposes a general duty on education authorities to secure the 'adequate and efficient provision of school education for their area'. In addition to this, the Act includes specific duties for education authorities in relation to children with special educational needs. These include requirements to open and review a Record of Needs for children with 'pronounced, specific or complex special educational needs, which are such as require continuing review' to ensure that agencies come together to plan and review a child's needs.
33. The Scottish Executive has carried out a review of assessment and recording for children with special educational needs. As a result, new legislation is likely to be brought forward to replace the Record of Needs with a new, more flexible Co-ordinated Support Plan and more streamlined intervention processes, which should support all children with additional support needs in a more integrated way. The publication on 'The Way Forward' 11 sets out the Scottish Executive's outline proposals for change. This future legislation is likely to amend or repeal a number of sections of the Education (Scotland) Act.
34. Secondly, the Standards in Scotland's Schools etc. Act makes further provisions. It requires that education authorities secure that education is directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential (section 2). In addition to this, section 15 of the Act includes a presumption in favour of providing mainstream education for all children. This is subject to the following exceptions:
- it would not be suited to the child's ability or aptitude;
- it would not be compatible with the provision of efficient education for other children with whom the child would be educated;
- it would result in unreasonable public expenditure that would not ordinarily be incurred.
35. When this section comes into force, a child could still be educated in a mainstream school, even if such exceptional circumstances occur, but the wishes of the child and the parents must be taken into account. The mainstreaming provision will be effective from August 2003 and guidance on this has been published by the Scottish Executive 12.
36. Therefore, in preparing and implementing accessibility strategies, local authorities should bear in mind that mainstream schools will need over time to accommodate some pupils who might previously have been educated in a special school. Accessibility strategies should support moves towards the mainstreaming of children with more complex difficulties by planning how mainstream schools will be prepared for the challenge of supporting new pupils.