Centre for Research in Education Inclusion and Diversity (CREID)

Autonomy, rights and children with special educational needs: A new paradigm

Sheila Riddell, Director of Centre for Research in Education Inclusion and Diversity and Chair in Inclusion and Diversity, University of Edinburgh

Professor Sheila Riddell

Over the past few years in both England and Scotland, legislation has established important new education rights for children and young people with additional support needs (ASN) (special educational needs (SEN) in England).  Research teams at the Universities of Edinburgh and Manchester led by Professors Sheila Riddell and Neville Harris are working on an Anglo-Scottish project which represents the first significant attempt to find out whether the reforms truly represent a paradigm shift in the recognition and realisation of these rights.  The research will be conducted between July 2017 and March 2019.

Until the legislative changes, which are due to commence in mid-January 2018 in Scotland, the overwhelming emphasis within the law in this area was on the rights of parents. The main aim was to promote ‘partnership’ between parents and education authorities. It is acknowledged by governments north and south of the Border that much remains to be done to ensure that the rights of parents and carers are understood and respected. The focus of the rights agenda now seems to have shifted, with children and young people now the main focus of activity.  In England, under Part 3  of the Children and Families Act 2014, those aged 16-plus have an independent right: to advice and information from the local authority; to express views on assessment of their needs and on a draft education, health and care plan (these plans have replaced ‘statements’ of SEN); to select a particular school as their placement; to request a review of their needs; to appeal in their own right over a wide range of issues; and to participate in mediation. For the under-16s, while the new rights are more limited, their autonomy has received some recognition.  English local authorities, when carrying out SEN functions, must now have regard not only to the child’s views, wishes and feelings but also to the importance of maximising his or her participation in SEN decisions and ensuring provision of the necessary support and information for this. The Act enables pilot schemes to be introduced for children to appeal or bring disability discrimination complaints under the Equality Act 2010.  In Scotland, the Education (Scotland) Act 2016 has conferred independent rights on children above the age of 12 who are judged to have capacity and where the exercise of these rights would not be detrimental to their well-being.  These rights are almost equivalent to those held by parents and young people and include the right: to request an assessment of ASN and a statutory plan; to receive advice and information; to request a copy of a Co-ordinated Support Plan and to use dispute resolution services including the Tribunal. On the face of it, this is a more substantial extension of children’s status as rights holders than in England, and may make Scotland the most progressive country in Europe with regard to children’s rights legislation.

However, there is always a danger that rights exist on paper but are not implemented in practice, and this research asks a number of questions about the changes that are needed to make theoretical rights a practical reality.  Given that many parents, particularly those from disadvantaged backgrounds, struggle to use their rights, what are the chances of children’s rights being realised in practice?  Are the new rights (for example, to bring an independent case to the tribunal) going to be used, and what support will be necessary to enable this to happen?   How are children’s rights going to sit alongside those of their parents, and is there any chance that one set of rights might be played off against another? In Scotland, how will the tests of capacity and detriment to wellbeing be applied in practice?  How will particularly vulnerable groups of children and young people be helped to use their rights, for example, those who are care experienced, from disadvantaged backgrounds, or with significant learning disabilities? In Scotland, it is also interesting to note that many of the rights are linked to the Co-ordinated Support Plan, but our research has shown that there has been a year-on-year decline in the use of both CSPs and IEPs, and CSPs are issued to only 0.3% of the school population http://www.docs.hss.ed.ac.uk/education/creid/Projects/39_ii_ESRC_SENChildren_WP_1.pdf

The methods we are using in this research include analysis of administrative data in the two jurisdictions, a survey of local authorities, key informant interviews and case studies of children and young people with ASN and their families to illustrate the possibilities and challenges of adopting a rights-respecting approach.

An important feature of the research will be the involvement of children and young people in key elements of it, including qualitative aspects and dissemination activities.  We are very keen to make contact with children and young people who would like to know more about what we are doing and may be willing to participate in the research.

We are also interested in hearing from parents of children with ASN, since they are often the child’s principal advocate and have important insights about the best ways of helping children use their rights.  If you are a parent/carer of a child with ASN, and you would like to help us with the research, please e-mail sheila.riddell@ed.ac.uk.  We would also like to hear from practitioners, policy makers and voluntary sector staff, all of whom will have important insights from their different perspectives.

Further information about the research is available on the web-site of the Centre for Research in Education Inclusion and Diversity https://www.ed.ac.uk/education/rke/centres-groups/creid/projects/autonomy-rights-sen-asn-children.