Is there a glossary for terms used in the No-nonsense Guides?

Disability Law in Education No-nonsense Guide

Disability Law in Education No-nonsense Guide
Authors: Mandy Aulak, Sean Kennedy
10 Nov 2022

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    Academy A type of independent school (i.e. not a school maintained by an LA) which has been set up in accordance with the Academies Act 2010 (i.e. through a Funding Agreement between the school and the Secretary of State for Education) and which is therefore state funded. Other independent schools are referred to here as “private schools”. 

    Annual review The process of yearly review of an EHCP. See CFA2014 s44(1) and Regs2014 r18.

    Authorities The collective term for decided case law, which constitutes previously decided cases (in the form of decisions and judgments) by the UT and Courts. These can be relied upon for particular legal propositions to show that a particular decision should be taken in a certain way. Where we mention an authority as being the reference for a particular legal proposition, the text includes a hyperlink to an on-line copy of its text. 

    Caselaw See above ‘Authorities’.

    CFA2014 / Children and Families Act 2014 – the principal piece of legislation which governs SEN law in England. 

    CCG / Clinical Commissioning Group. These are the local NHS bodies generally responsible for providing health care provision in their area, including therefore to a CYP.

    Child A person who is not over compulsory school age: EA1996 s579(1) (definition still applies by virtue of CFA2014 s83(7)).

    COP2015 SEN Code of Practice. For more information: Noddy No-nonsense Guide to SEN law. Detailed advice: What is the SEN Code of Practice?

    CYP Child or young person up to the age of 25.

    DDA1995 / Disability Discrimination Act 1995 – the legislation which provided the framework in relation to disability in England, Scotland and Wales (and was one of the forerunners of the Equality Act 2010 (EqA2010). The Special Educational Needs and Disability Act 2001 inserted new provisions in Part 4 of the DDA 1995 in connection with disability discrimination in schools and other educational establishments. The DDA was replaced by the EqA2010 in England, Scotland and Wales but is still in force in Northern Island. 

    Disability Regs 2010 The regulations promulgated under the EqA2010 which re-enacted with amendments provisions which were previously made under the Disability Discrimination Act 1995 (c.50) and which are revoked by these regulations including new Regulation 6 which contains provision for assessing the ability of a child under six years of age to carry out normal day to day activities. 

    Disability The Protected characteristic of disability in s6 EqA2010 (England, Scotland and Wales) and in S1 The Disability Discrimination Act 1995 (Northern Island only).

    Discrimination EqA2010 defines disability discrimination in education as being one or more of the following – direct discrimination in s13; indirect discrimination in s19; discrimination arising from disability in s15; failure to make reasonable adjustments in s20; victimisation in s27; and harassment in s26.

    Direct payment Payments representing all or part of a personal budget made to a child’s parent or young person (or other prescribed person) to secure provision to which the budget relates. See CFA2014 r49 and The Special Educational Needs (Personal Budgets) Regulations 2014.

    DoE The Government Department of Education is responsible for children’s services and education, including early years, schools, higher and further education policy, apprenticeships and wider skills in England. 

    DoE Guidance for SEND 19-25 DoE’s guidance ‘SEND: 19-25 year olds’ entitlement to EHC plans, available here.

    EA1996 Education Act 1996 – the legislation which used to govern SEN in England (and was the basis for Statements of SEN). The SEN aspects are now covered by CFA2014, but some other elements of EA1996 (such as in relation to home-school transport) are still in operation.

    EAT Employment Appeal Tribunal. The superior court which handles appeals against decisions made by the Employment Tribunal.

    EBD emotional and behavioural difficulties/disabilities.

    EHCP(s) Education Health and Care Plan(s).

    EHRC Guidance What equality law means for you as an education provider: s1.8 (Positive Action) states it is never unlawful to treat disabled pupils (or applicants) more favourably than non-disabled pupils (or applicants). That is, a school is permitted to positively discriminate in favour of disabled pupils (applicants).

    EHRC Technical Guidance This is non-statutory guidance from the EHRC in the absence of a code of practice. It provides formal, authoritative, and comprehensive interpretation of the legal framework including the PSED and education sections of the EqA2010

    EHRC Technical Guidance for SchoolsIn England outlines the requirements of the Equality Act 2010 for schools in relation to the provision of education and access to benefits, facilities or services, both educational and non-educational. An authoritative, comprehensive and technical guide to the detail of the law. It is aimed at those working in schools, lawyers, advocates, courts and tribunals, and everyone who needs to understand the law in depth or to apply it in practice.

    Equality Act 2010 (EqA2010) – the principal piece of legislation which governs equality in England, Scotland and Wales. 

    EqA2010 Guidance On the definition of disability that applies in England, Scotland and Wales (separate guidance applies to Northern Ireland). This guidance is issued by the Secretary of State under s6(5) of the EqA2010 about matters to be taken into account in determining whether a person is a disabled person. 

    ET Employment Tribunal. An independent specialist tribunal which makes decisions in legal disputes in employment law including claims of discrimination. Their decisions are not binding on the FTT although can be helpful.

    FTT First Tier Tribunal. The independent court-like body to which parents (in relation to a child) or a young person (on their own account) can appeal in relation to decisions about the EHCP process and EHCPs. The term “SENDIST” or “SENT” or “tribunal” is also used by some people and in some contexts. The FTT also handles claims of disability discrimination against schools and/or possibly local authorities due to a child’s disability under the EqA2010.

    FTT (HESC) Rules First Tier Tribunal (Health, Education and Social Care) Rules 2008; i.e. the rules that specify the processes for FTT appeals and claims of disability discrimination.

    HCP health care provision, which is “the provision of healthcare health care services as part of the comprehensive health service in England continued under section 1(1) of the National Health Service Act 2006”: CFA2014 s21(3).

    Impairment The term mental or physical impairment must be given its ordinary meaning and does not necessarily equate with a diagnosed medical condition. It can be caused by an injury, illness or condition that means that part of your body or brain does not work as expected. It is a functional concept and the emphasis of the definition is more on the fact that the ability to carry out normal day-to-day activities is reduced rather than on the cause of the “impairment”.

    Independent living skills This includes finding employment, obtaining accommodation and participation in society (Regs2014 r2(2)), and will include basic living skills such as (for example) dressing, washing, food preparation etc.

    Independent school Means (by virtue of EA1996 s463) a school which is not maintained by the LA (this includes Academies and private schools).

    LA / Local Authority. The relevant LA responsible for education provision for a particular child is set out in CFA2014 s24. In an area with a “county council”, it is likely to be the County Council. Where there is a “unitary authority” (such as a “borough council”) it is likely to be that body. The previous expression “local education authority” (LEA) no longer exists so it should only appear in old documents.

    Maintained in general terms is an educational institution which is funded by, and operates under the oversight of, an LA. More legalistically: (a) a community, foundation or voluntary school, or (b) a community or foundation special school not established in a hospital: CFA2014 s83(2).

    Mainstream means (by CFA2014 s83(2): (a) a maintained school that is not a special school, or (b) an Academy school that is not a special school.

    MLD moderate learning difficulties.

    National Trial The FTT procedure currently being operated as an experiment by which health and social care needs and provision can be considered by the FTT alongside consideration of educational matters. More: Can I appeal to the FTT about health or social care provision when I appeal the education provision?

    Paramountcy principle The principle that the child’s welfare shall be the Court’s paramount consideration, see Children Act 1989 s1(1).

    PCP The phrase ‘provision, criterion or practice’ (or PCP as it is often referred to) is not defined in the EqA2010 but should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions. A PCP may also include decisions to do something in the future such as a policy or criterion that has not been yet applied, as well as a ‘one-off’ or discretionary decision. 

    Peer group The other children who a CYP interacts with including in class. 

    Personal budget The amount an LA has identified as available to secure particular provision which is specified with a view to the child’s parent or the young person being involved in securing the provision. See CFA2014 s49 and The Special Educational Needs (Personal Budgets) Regulations 2014

    Post 16 Provision means any technical education or training provided to individuals over compulsory school age

    Private school A school that charges fees. Often referred to as an “independent school”, however the legal definition of independent school includes Academy schools, which are not fee-paying. 

    Protected Characteristics are set out in the Equality Act (s4 EqA2010). Disability is one of the specified protected characteristics.

    PSED / Public sector equality duty (sometimes also referred to as the ‘general duty’) is the legal duty placed on all public authorities to consider the need to promote equality in everything they do, as defined in s149 EqA2010. It applies to public bodies, including maintained schools and academies (including Free Schools), and extends to all protected characteristics including disability. All schools should have an accessibility plan which promotes disability inclusion in schools.

    Reasonable Adjustments A concept that originated in the DDA1995, and is now set out in s20 EqA2010. An education provider has a duty pursuant to s20 EqA2010 to make ‘reasonable adjustments’ to make sure disabled students are not disadvantaged as a result of the effects of their impairments. This duty means taking an active approach requiring education providers to take steps to remove barriers from student participation and thus avoid being disadvantaged. These steps could include changing procedures, providing auxiliary aids such as additional support or equipment. Schools are not subject to the reasonable adjustment duty to make alterations to physical features, like adding ramps but it is certainly the case that they must make education accessible for their disabled pupils and this is something which should be monitored in a school’s accessibility plan. 

    SEN Regs2014 Special Educational Needs Regulations 2014.

    SEN / Special Educational Needs. A CYP is said to have SEN if they have a learning difficulty or disability which calls for SEP to be made for them: CFA2014 s20. For more information: Noddy No-nonsense Guide to SEN law. Detailed adviceAre there particular rules about whether a child or young person has special educational needs?

    SEP / Special Educational Provision. SEP is educational or training provision that is additional to, or different from, that generally made for others of the same age in mainstream provision: CFA2014 s21. More: Is there a rule specifying what counts as SEP?

    SCP/Social Care Provision A “provision made by a local authority in the exercise of its social services functions”: CFA2014 s21(4); such provision is sometimes called “social care” or “community care”.

    Section 41 School CFA2014 s41 allows independent special schools and special post-16 institutions to apply to be approved (and then to be approved) as schools which can be the focus of a parental or young person’s request for a particular placement in circumstances where there is then a qualified presumption in favour of that request. 

    Special school Means (by EA1996 s337) a school which is specially organised to make SEP for pupils with SEN that is maintained by the LA, an Academy [special] school or a non-maintained special school. 

    Statement [of SEN] The (now historic) document under the EA1996 which was previously the equivalent of what is now an EHCP.

    Statutory Guidance sets out what schools and local authorities must do to comply with the law 

    UT / Upper Tribunal. The court-like body to which a parent or LOA can appeal to if they believe the FTT has made an error of law. The principles in its decisions are binding on the FTT

    Disability Law in Education No-nonsense Guide

    Disability Law in Education No-nonsense Guide
    Authors: Mandy Aulak, Sean Kennedy