Richard Rieser
Disability Equality


The SEN and Disability Act 2001 makes significant changes to the educational opportunities available to disabled children and students and those with special educational needs. The Act affects LEAs, nurseries (with public funding), schools, including independent and non-maintained special schools, FE colleges, HE and youth services. This summary indicates the main changes that affect the School and Post School stages of education.

Part I: Special Educational Needs

Part I of the Act amends Part IV of the Education Act 1996 in the light of the consultation on the Government's Green Paper and Programme of Action. The proposals for legislation were further consulted on in March 2000. This part of the Act came into force in January 2002. The Act:

  1. The Act removed efficient education and an education appropriate to meet the needs of the child from Section 316 of the 1996 Education Act. These get-out clauses had been used to exclude disabled children from mainstream schools and send them to special schools against the children's or their parents wishes. The Department for Education and Skills have issued statutory guidance on interpreting the remaining caveat that prevents disabled children being educated in a mainstream school if that is what their parents want. 'Inclusive Schooling: Children with Special Educational Needs' November 2001 DFES /0774/2001 gives guidance on how to interpret this remaining caveat. This came into force on 1 January 2001. The guidance limits the scope for using incompatible with the efficient education of other children. It provides examples of the reasonable steps schools might take to include children with various impairments so their inclusion would not be incompatible with the efficient education of other children. The reasonable steps to ensure that the inclusion of a child with learning difficulties is not incompatible with the efficient education over other children may include:
  2. Requires schools to inform parents when they make special educational provision because they have identified their child as having SEN;
  3. Permits schools to request a statutory assessment in the same way that parents can;
  4. Makes changes in the arrangements for amendments to statements;
  5. Requires LEAs to provide and advertise parent partnership services;
  6. Requires LEAs to make arrangements for resolving disagreements between parents and schools and between parents and the LEA;
  7. Tightens up arrangements for appeals to the Tribunal, including setting time limits for the implementation of the decisions of the Tribunal.

Part II: Disability Discrimination in Education Schools.

Currently the Disability Discrimination Act 1995 covers a range of services but does not include education. In November 1999, the Disability Rights Task Force advised the Government on how they might extend the DDA to include education. The Government consulted on proposals for legislation. The legislation is designed to ensure that disabled children are not discriminated against in any aspect of school life. This part of the Act amends the 1995 DDA and comes into force in September 2002 and is anticipatory in duty. The Act:

  • makes it unlawful to discriminate against disabled pupils and prospective pupils in admissions, in education and associated services and in exclusions;
  • sets out a duty on schools not to treat disabled pupils less favourably than non-disabled pupils;
  • sets out a duty on schools to take reasonable steps to ensure that they don't put disabled pupils at a substantial disadvantage;
  • provides for remedy through the renamed SEN and Disability Tribunal, which will have an extended remit to hear disability discrimination cases seek apologies and make orders (but not impose fines);
  • sets out a duty on LEAs and on schools to plan to increase environmental access, curriculum access and access to printed information for disabled pupils in schools. This to be monitored by OFSTED; the LEA strategy and school plan need to be in place by April 2003. (See 'Accessible Schools: Planning to Increase Access to Schools for Disabled Pupils', DfES 0020/2002 also available: dfes.gov.ukjconsultations/index.cmf?CONID+ 145
  • Further and Higher Education.

    The Act comes into force in September 2002 and:
  • makes it unlawful to discriminate against disabled students and prospective students in admissions, in education and associated services and in exclusions;
  • sets out a duty on colleges and universities not to treat disabled students less favourably than non-disabled students;
  • sets out a duty on colleges and universities to take reasonable steps to ensure that they don't put disabled students at a substantial disadvantage;
  • provides for remedy through the County Court/ Sheriff Court in Scotland with remit to hear disability discrimination cases and to award financial compensation and make orders to change practice;
  • requires the post-16 sector to make physical changes to their premises to improve access and to provide extra support and services for disabled pupils;
  • requires, from September 2003, the post-16 sector to provide aids and services for disabled students.
  • requires, from September 2005, the altering or removal of features in post-16 education where disabled students are placed at a disadvantage.
  • For a responsible body which can be a Proprietor of private school, School, LEA or College or University:

    There is a duty not to treat less favourably a disabled student or pupil in admissions, education and associated services and exclusions. The only justification is permitted selection criteria or a substantial reason.
    The responsible body has a duty has to make reasonable adjustments. In determining a reasonable adjustments the following factors can be taken into account.

    1. The need to maintain academic, musical, sporting or academic standards
    2. The financial resources available to the responsible body
    3. The cost of taking the particular step
    4. The extent to which it is practical to take the particular step
    5. The extent to which aids and services will be provided to disabled pupils at the school under Part IV of the Education Act 1996 or Section 60-65G of the Education (Scotland) Act 1980.
    6. Health and safety requirements.
    7. The interests of other pupils or students and persons who may be admitted to the institution as pupils or students.

    Clearly these have the potential to negate the impact of the Act and only the Courts and Tribunals will determine what is reasonable. However two things are clear. The Primary Legislation was made to advance things from the current discriminatory status quo. Secondly Schools, LEAs and Colleges should operate from a good practice model as institutions committed to equal opportunities. This means reviewing all existing policies & practices for possible disability discrimination and this process should start now.

    The Special Educational Needs Code of Practice (DfES/581/2001) came into force on 1 January 2002. The new Code of Practice is weaker than it should be in making links with the new duties under DDA. However, it has new chapters on Parental and Pupil involvement that extend their role and requires that pupils are consulted at all stages about their wishes. The new Code of Practice introduces a more flexible School and School Plus and Early Years and Early Years Plus stages to meet SEN before issuing a statement. At the School Plus/ Early Years Plus stage, pupils can get support and services from beyond the school without having a statement. LEAs have to make clear what they will provide and what the school will provide. This should be used to prevent children being pushed to be statemented to access resources. The Code is a long 210-page document, but it is available from DFES, telephone 0845 60 222 60 or can be obtained through DFES website above.

    The Disability Rights Commission (Tel: 08457 622633, or e-mail Enquiry@drc-gb.org)
    New powers are for the DRC to issue Codes of Practice, to carry out investigations into complaints of disability discrimination in all education settings and to provide a conciliation service. There will be (i) a School Code of Practice, and (ii) a Post-16 Code of Practice. Drafts have been consulted on and final versions will be issued in May 2002. They come into force in September 2002.


    "A person has a disability if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day to-day activities." - Part 1, para. 1.1. In the Act "disabled person" means a person with a disability - Part 1, para. 1.2.
    To fall within the Act, a person must be substantially affected by their disability in one of the following ways:

    For the purposes of definition, ignore the effects of medical or other treatments or aids and appliances. The definition ignores a social model definition of disablement that would recognise that disability is a process by which people with physical, mental or sensory impairments are excluded from ordinary activities by physical, organisational or attitudinal barriers.
    Substantial means 'not trivial.'

    Some people who do not come within the definition will nevertheless be considered disabled. Those with disfigurement or cancer survivors or others who have had a disability in the past or those people with a progressive condition once the symptoms appear. Those with challenging behaviour due to a clinically diagnosed condition are covered while those who may display similar behaviour but do not have a clinical diagnosis are not covered. Those with SEN are not the same population as those defined above. There is a big overlap.
    We recommend that all pupils with SEN be treated as disabled for the purposes of the Act and for equality in addition to all pupils with impairments being treated as disabled under the Act.

    © Richard Rieser, Disability Equality in Education, after P. Stobbs National Children's Bureau

    Possible overlap of SEN and DDA disability definition for children and young people.