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Charging for SEN provision

A myth persists in the sector that it is now "unlawful to charge for SEN provision". The correct position is as follows:

10 February 2012
  1. Since the Equality Act, it is unlawful to charge for "reasonable adjustments" for pupils with disabilities. At present this applies only to adjustments made to " a provision , criterion or practice". It does not apply to the provision of "auxiliary aids", the definition of which includes services. As learning support generally takes the form of services, charges can currently still lawfully be levied for those services.
  2. The government proposes to change the legal definition of "reasonable adjustments" to extend it to the provision of "auxiliary aids and services". If it goes ahead, the change is proposed to take effect from 1st September 2012. We are still waiting for confirmation but schools should start thinking about this now.
  3. If the change goes ahead, the ban on charging will only apply to a) "reasonable" adjustments and b) pupils with disabilities.
  4. What is "reasonable" for a school to have to do without making a charge is a context-specific decision for each school. Obviously, that judgement is open to challenge by parents, but as a starting proposition, it is a decision for the governors of the school. Schools may wish to consider having a "Reasonable adjustments policy" in place to set out their thinking around what services are included in the fees and what services will attract additional charges on the basis that they go beyond what is reasonable.
  5. It is also important to recognise that SEN and Disability are not one and the same, in legal terms. There is often overlap, but the legal definitions differ. This means that not every pupil whom you have identified as having SEN would be considered by the law to be "disabled". Under the Equality Act, a person is disabled if they have "a physical and/or mental impairment which has a substantial, long term adverse effect on their ability to carry out normal day to day activities".
  6. Some conditions will always or generally be assumed to be disabling, such as Downs Syndrome. Other conditions, such as Specific Learning Difficulties, may or may not be disabling depending on the impact on the particular individual. JCQ, for example, takes the view that pupils who are functioning within the normal range on standardised tests (85 or above), cannot be said to be suffering a substantial adverse effect on their ability to carry out normal day to day activities.
  7. If the change in the law goes ahead, it is likely that guidance will be provided by the Department for Education or Equality and Human Rights Commission. If there is a demand for it, ISC will provide our own guidance. Do please contact us if you have a comment or question about this on legal@isc.co.uk. For information here is the ISC consultation response.

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