Some excerpts of the law and the principles associated with the issue.
25. Working Together to Safeguard Children (2013): Statutory guidance from the Department for Education which sets out what is expected of organisations and individuals to safeguard and promote the welfare of children •
26. The Children Act 1989 Guidance and Regulations Volume 2 (Care Planning Placement and Case Review) and Volume 3 (Planning Transition to Adulthood for Care Leavers): Guidance setting out the responsibilities of local authorities towards looked after children and care leavers •
27. Equality Act 2010: Advice for schools: non-statutory advice from the Department for Education, produced to help schools understand how the Equality Act affects them and how to fulfil their duties under the Act • Reasonable adjustments for disabled pupils (2012): Technical guidance from the Equality and Human Rights Commission
28. Supporting pupils at school with medical conditions (2014): statutory guidance from the Department for Education
29. The Mental Capacity Act Code of Practice: Protecting the vulnerable
Focus on inclusive practice and removing barriers to learning: Overarching principles.
30. 1.26 As part of its commitments under articles 7 and 24 of the United Nations Convention of the Rights of Persons with Disabilities, the UK Government is committed to inclusive education of disabled children and young people and the progressive removal of barriers to learning and participation in mainstream education.
31. The Children and Families Act 2014 secures the general presumption in law of mainstream education in relation to decisions about where children and young people with SEN should be educated and the Equality Act 2010 provides protection from discrimination for disabled people.
32. 1.27 Where a child or young person has SEN but does not have an EHC plan they must be educated in a mainstream setting except in specific circumstances (see below).
33. 26 The School Admissions Code of Practice requires children and young people with SEN to be treated fairly. Admissions authorities:
• must consider applications from parents of children who have SEN but do not have an EHC plan since the school’s published admissions criteria as part of normal admissions procedures.
• must not refuse to admit a child who has SEN but does not have an EHC plan because they do not feel able to cater for those needs.
• must not refuse to admit a child on the grounds that they do not have an EHC plan.
34. 1.28 The Equality Act 2010 prohibits schools from discriminating against disabled children and young people in respect of admissions for a reason related to their disability.
35. 1.29 Children and young people without an EHC plan can be placed in special schools and special post-16 institutions only in the following exceptional circumstances: • where they are admitted to a special school or special post-16 institution to be assessed for an EHC plan with their agreement (in the case of a young person) or the agreement of their parent (in the case of a child), the local authority, the head teacher or principal of the special school or special post-16 institution and anyone providing advice for the assessment
• where they are admitted to a special school or special post-16 institution following a change in their circumstances with their agreement (in the case of a young person) or the agreement of their parent (in the case of a child), the local authority and the head teacher or principal of the special school or special post-16 institution. Where an emergency placement of this kind is made the local authority should immediately initiate an EHC needs assessment or re-assessment • where they are in hospital and admitted to a special school which is established in a hospital, or • where they are admitted to a special academy (including a special free school) whose academy arrangements allow it to admit children or young people with SEN who do not have an EHC plan.
36. 1.30 The last of these provisions enables the Secretary of State to approve academy arrangements for individual special academies or special free schools that are innovative and increase access to specialist provision for children and young people without EHC plans. Those academies the Secretary of State authorises will make clear through their Funding Agreement that a child or young person with SEN, but no EHC plan should be placed there only at the request of their parents or at their own request and with the support of professional advice such as a report from an educational psychologist. A special academy or special free school with these arrangements will be able to admit only those children who have a type of SEN for which they are designated. They will have adopted fair practices and arrangements that are in accordance with the Schools Admission Code for the admission of children without an EHC plan.
37. 1.31 The leaders of early years settings, schools and colleges should establish and maintain a culture of high expectations that expects those working with children and young people with SEN or disabilities to include them in all the opportunities available to other children and young people so they can achieve well.
38. 1.32 There is a significant overlap between children and young people with SEN and those with disabilities and many such children and young people are covered by both SEN and equality legislation.
39. 1.33 The Equality Act 2010 and Part 3 of the Children and Families Act 2014 interact in several important ways. They share a common focus on removing barriers to learning. In the Children and Families Act 2014 duties for planning, commissioning and reviewing provision, the Local Offer and the duties requiring different agencies to work together apply to all children and young people with SEN or disabilities. In carrying out the duties in the Children and Families Act 2014, local authorities and others with responsibilities under that Act, are covered by the Equality Act.
40. 1.34 In practical situations in everyday settings, the best early years settings, schools and colleges do what is necessary to enable children and young people to develop, learn, participate and achieve the best possible outcomes irrespective of whether that is through reasonable adjustments for a disabled child or young person or special educational provision for a child or young person with SEN.
41. 1.35 Much of the guidance in this Code of Practice focuses on the individual duties owed to children and young people with SEN. When early years settings, schools and colleges, local authorities and others plan and review special educational provision and make decisions about children and young people with SEN (chapters 5 to 7) and 9) they should consider, at the same time, the reasonable adjustments and access arrangements required for the same child or young person under the Equality Act.28
42. 1.36 The presumption of mainstream education is supported by provisions safeguarding the interests of all children and young people and ensuring that the preferences of the child’s parents or the young person for where they should be educated are met wherever possible.
43. 1.37 Special schools (in the maintained, academy, non-maintained and independent sectors), special post-16 institutions and specialist colleges all have an important role in providing for children and young people with SEN and in working collaboratively with mainstream and special settings to develop and share expertise and approaches. 1.38 Children and young people with SEN have different needs and can be educated effectively in a range of mainstream or special settings. Alongside the general presumption of mainstream education, parents of children with an EHC plan and young people with such a plan have the right to seek a place at a special school, special post-16 institution or specialist college. Further details of the arrangements for Education, Health and Care Plans are set out in Chapter 9.