Ensuring your rights to an inclusive education

Children and adults who have Down’s syndrome must be able to enjoy full and equal rights alongside their peers. This includes the opportunity to participate fully in education and in their local communities as and when they wish.

Two major pieces of legislation you should be aware of in relation to the education of pupils who have Down’s syndrome are the Children & Families Act 2014 (& SEND Code of Practice, 2015) and the Equality Act 2010.

Children and Families Act 2014 (Section 3) and
SEND Code of Practice 2015

All children and young people who have Down’s syndrome will need additional support in school. The amount and type of support will vary according to the needs of the individual child or young person. There is a legal framework to ensure that children get the help they need in education. This is set out in the Children and Families Act 2014 and the associated Code of Practice 2015.

Pupils who have Special Educational Needs may be eligible for:

SEN support – support given in school, like speech therapy
an Education, Health and Care (EHC) plan – a plan of care for children and young people aged up to 25 who have more complex needs.

Many children and young people who have Down’s syndrome will need an EHC plan/EHCP. The local authority (LA) is legally responsible for writing the EHCP. Families should however be closely involved in the assessment and planning process. When the EHCP is being finalised, you will be asked to express a preference for a school. The majority of children who have Down’s syndrome are educated in mainstream primary schools and a growing proportion in mainstream secondary. If there are older siblings in the family, your starting point will probably be the school they already go to.

Some things to bear in mind might be:

Size of the school and suitability of the environment
Experience of children with SEN generally and Down’s syndrome in particular
Involvement of class teachers with children with SEN

Most important is an inclusive attitude and willingness to learn and to get to know your child as an individual.

Your child has a general right to mainstream education. The Local Authority must specify a mainstream school unless it is:

Against the wishes of the parent
Incompatible with the efficient education of other children.

They cannot refuse mainstream education outright on the grounds of ‘unsuitability’. Also, they must demonstrate that there are no reasonable steps it could take to prevent incompatibility (Code of Practice 9.89).

Equality Act 2010

The law relating to disability discrimination is the Equality Act 2010. In England and Wales the Act applies to all maintained and independent schools, including Academies, and maintained and non-maintained special schools. The Act makes it unlawful for the responsible body of a school to discriminate against, harass or victimise a pupil or potential pupil:

in relation to admissions,
in the way it provides education for pupils,
in the way it provides pupils access to any benefit, facility or service, or
by excluding a pupil or subjecting them to any other detriment.

All people who have Down’s syndrome will count as people with a disability under the Act. Schools and colleges cannot unlawfully discriminate against pupils because of their sex, race, disability, religion or belief or sexual orientation. The Act defines four kinds of unlawful behaviour – direct discrimination; indirect discrimination; harassment and victimisation.

Schools and colleges are allowed to treat disabled pupils more favourably than non-disabled pupils, and in some cases are required to do so, by making reasonable adjustments to put them on a more level footing with pupils without disabilities. The duty to make reasonable adjustments applies only to disabled people. Where something a school does places a disabled pupil at a disadvantage compared to other pupils then the school must take reasonable steps to try and avoid that disadvantage. Schools will be expected to provide an auxiliary aid or service for a disabled pupil when it would be reasonable to do so and if such an aid would alleviate any substantial disadvantage that the pupil faces in comparison to non-disabled pupils. Many disabled children will have Special Educational Needs and may need auxiliary aids which are necessary as part of their SEN provision; in some circumstances as part of their EHCP. These aids may be provided in the school under the SEN route, in which case there will be no need for the school to provide those aids as part of their reasonable adjustment duty.

Down Syndrome Act 2022

The Down Syndrome Act 2022 guidance is unlikely to include guidance specifically related to education, as the Guidance produced will need to work within the wider SEND legislative framework. This framework is currently under review, with various proposals being tested as part of the Government’s SEND & Alternative Provision Improvement Plan. Until legislative reform happens, ie a change in the Children & Families Act 2014, all of your child/young person’s current rights remain.

The Department for Health & Social Care explained:

‘The main aim of the SEND and alternative provision green paper is to ensure that children and young people with SEND get the right support, in the right place, at the right time. It sets out proposals to improve early intervention, make clearer the support and services everyone (including people with Down’s syndrome) should expect and have funding and accountability systems in place which supports this. In combination, these measures should improve families’ experience of getting support and improve outcomes, as well as making the system more sustainable and resilient.’

Pupils in Wales

For pupils (0-25 years) in Wales, the legislation you need to refer to is the Additional Learning Needs (Wales) Act 2018 and the Additional Learning Needs (ALN) Code 2021. Click here for more information.

Children and young people whose needs cannot be met through universal support in the classroom will have a statutory Individual Development Plan (IDP), which will outline their support needs. An IDP is prepared by schools, colleges or local authorities working with the child, their parents or the young person, as well as professionals (such as health professionals). Their Additional Learning Provision (ALP) will be detailed in this plan. Where necessary, IDPs will include ALP agreed by health services, social services and other services, as well as education. IDPs will contain an action plan that is clear about which agency is responsible for delivering the individual elements. IDPs must be reviewed every twelve months, or sooner if necessary.

All schools and other education settings have an Additional Learning Needs Co-ordinator (ALNCo) and have received training and additional funding to help put in place the new system.

If a child or young person needs ALP in Welsh, this must be documented in the IDP and ‘all reasonable steps’ must be taken to secure the provision in Welsh.

A Factsheet is available here.

Click here for a guide to your rights under the ALN system.

Pupils in Northern Ireland

The law dealing with Special Education in Northern Ireland is contained in the The Education (Northern Ireland) Order 1996 as amended by The Special Educational Needs and Disability (Northern Ireland) Order 2005 (SENDO) and the Special Educational Needs and Disability Act (Northern Ireland) 2016.

You can find the Code of Practice here.

If a mainstream school cannot provide all the help your child needs, the Education Authority (EA) in your region may carry out an assessment to find out what your child’s special educational needs are and how they can be supported. Once the Education Authority (EA) in your region has assessed your child, they can decide to record the information they have in a statement of special educational needs.

A Statement of SEN is a document that sets out the child’s needs and the special help that will be given to help meet those needs. The protection of a statement will be given to children whose needs are such that extra resources, or different resources from those normally available in mainstream schools, must be given by the Education Authority. It is reviewed annually.

As well as their Special educational needs rights, children with disabilities have the right not to be subjected to disability discrimination by the schools in which they are pupils – or to which they are applying to become pupils.

DSA resources

We have provided some useful information and resources about educational rights below. If you need further individual advice about educational rights, please contact us: 0333 1212 300 or Email: info@downs-syndrome.org.uk