This paper examines how effective legislation is in terms of encouraging pupils with impairments into mainstream education as opposed to special schools, highlighting the attempts to improve inclusion in legislation and providing a statistical analysis to judge its success. The study was conducted, with the motivation of showing that social justice is not necessarily being achieved. The method of approach used was making use of educational theory, raw statistics and statistical analyses to provide evidence displaying that legislation can be effective in some instances; however there was copious evidence that showed no positive change after the introduction of other examples of legislation. It is concluded that the most effective intervention (statistically) was the introduction of the pupil referral units; however evidence that numbers of pupils attending special schools remaining constant suggests progress is not as abundant as intended.
In this paper I shall attempt to assess the effectiveness of a piece of legislation in improving the inclusion of people with physical and mental impairments, by use of literature and statistics provided by governmental organisations. In this paper, by effectiveness, I will refer to the statistical element rather than the quality of the inclusion itself by analysing the impact that the act has had on participation in mainstream schooling. The aims of this paper are to emphasise the importance of inclusion supported by the use of literature, to gain an understanding of the history and nature of inclusion of impaired pupils in England prior to 2001 and to ascertain how the piece of legislation has attempted to alter the movement of pupils towards the mainstream and if, with use of statistics, there is evidence of success. The piece of legislation being referred to in this paper is the Special Educational Needs and Disability Act 2001 section 11 (1) to (4).
The portrayal of the impaired by popular culture is one of inability and fragility, something that seemed to have infiltrated my understanding prior to my teaching practice. Due to the every child matters agenda, I knew there would be a favourable probability that encountering the specific situation would occur, and it eventually did. This experience drew no parallels to any of my concerns and subsequently fostered my interest in inclusion, specifically that of the impaired. This paper will also draw upon the history of impairment in education, looking at the issue in terms of social justice, which is vital to having an equal and just society. If the aspiration for any progressive society is to provide important services to all members, governmental policy and how well it works is significant, providing reason for the necessity of this investigation.
It would seem pertinent, when producing a paper whose core theme is that of disability and impairment, to understand what is meant by the terms. The definitions as provided by the World Health Organisation are as follows:
"Disabilities is an umbrella term, covering impairments, activity limitations, and participation restrictions. An impairment is a problem in body function or structure; an activity limitation is a difficulty encountered by an individual in executing a task or action; while a participation restriction is a problem experienced by an individual in involvement in life situations." (WHO, 2010)
Hughes and Paterson (1997, p. 328) support the distinction between impairment and a disability with the former referring to the biological defects and the latter to the resultant of this due to society. They claim that the best definitions of the two are provided by the Union of the Physically Impaired against Segregation (UPIAS) (1975, p. 14). They define impairment "as lacking part of or all of a limb, or having a defective limb, organ or mechanism of the body" and disability as "the disadvantage or restriction of activity caused by a contemporary social organisation which takes no or little account of people who have physical impairments and thus excludes them from participation in the mainstream of social activities." These shall be the definitions to which I shall refer when the terms are mentioned in this paper.
From these definitions it would seem that an inclusive society would seek to eradicate disability. Disability could be viewed as an obstacle to social justice, as when a member of society is excluded from important aspects of social life - as is schooling - when it is their right to be included, social justice as defined classically by Rawles (1972, cited in Gewirtz, 2002, p. 140) is absent, he states:
"The subject matter of justice is the basic structure of society, or more exactly, the way in which the major social institutions... distribute fundamental rights and duties and determine the distribution of advantages from social cooperation."
According to Barnes (1998, p. 66), in the late 1940's, Parsons argued that "the 'normal' state of being in Western developed societies is 'good health', consequently sickness, and by implication impairments, are deviations from 'normality'." Paterson and Hughes conversely argue that this opinion is part of an outdated understanding of the functional necessities to become a productive member of society (2000, in Howson, 2004, p. 26).
Disability in education is commonly interpreted by two models, the medical and social models, although other models exist or have existed in the past, they have had a minimal social impact (Barnes and Mercer, 2010, p. 14). The medical model of disability in education is explained by Chapman et al. (2010) with a main focus on the learners, acknowledging their impairments and thus providing individualised support when incorporated into the mainstream (p. 5). The social model in contrast, gives prominence to the needs of a person rather than the personal tragedy that a disability causes (Barnes, cited in Shakespeare, 1998, p. 76; Barnes and Mercer, 2010, p. 14;Howson, 2004, p. 26). The focus of the model is that difference can lead to difficulty in learning, thus schools and classrooms should be responsive and reorganise according to nature of the learners (Dyson and Millward, 2000, p. 161-163).
One could question the inclusive nature of an education system, but it is initially vital to ascertain its meaning. Booth et al. (2000, cited in Florian et al., 2010, p. 709) provide a definition of what constitutes inclusive education, stating it is the 'process' of reducing exclusion and increasing participation in "culture, the curriculum and the community of mainstream schools." Polat (2011, p. 50) attempts to take this further by explaining that inclusion not only involves the school but the education system as a whole, including educational policy and legislation, declaring that "Inclusion involves the processes of changing values, attitudes, policies and practices within the school setting and beyond."
It should be made clear that this piece of work is set in the context of the English education system, and in order to understand the effectiveness of the said legislation, there must be an understanding of the situation before as well as after its implementation. Using the available literature I shall attempt to provide the evidence that this piece of legislation promotes inclusion, and to assess its effectiveness to the issue of inclusion of impaired pupils in mainstream schools.
The History of Special Education in England
There is a grand history in England of the implementation of special institutions for the impaired which can be tracked prior to the eighteenth century, often started by religious establishments, charitable organisations and individuals (Sutherland, 1981 cited in: Swann, 1981 p. 94). Dale (2007) explains that children diagnosed as mentally defective were placed in institutions such as Starcross asylum - established in the 1860's - where they also occasionally received basic training and some education (p. 22). Although the argument exists that these institutions were introduced with intentions of philanthropy it is undoubtedly the case that these institutions caused segregation and a diminished understanding of the impaired by other members of society. Perceptions of the impaired today are still influenced by this period of history (Armstrong, 2007, p. 556).
Moves toward inclusion became evident during the Second World War, according to Armstrong (2007, p. 559) due to the blitz bombings, educational infrastructure was 'profoundly affected'. In addition to this the mass evacuation of children from large cities caused disorder to the education system, the increase of birth rate and the developing principle from the public that the impaired should be brought into mainstream education held influence in the introduction of the Education Act of 1944 (ibid.; Warnock, 1978, p. 22).
Part II subsection 36 of the act (as enacted) stated that "It shall be the duty of the parent of every child of compulsory school age to cause him to receive efficient full-time education suitable to his age, ability, and aptitude, either by regular attendance at school or otherwise.", with section 40 highlighting the responsibility of the Local Education Authority to enforce this (http://www.legislation.gov.uk). This displays large steps toward an effort to encourage parents to introduce impaired pupils to the education system, however section 57 (4) shows the very antithesis of inclusion, providing avenues to exclude pupils based on mental impairments, which acknowledges that impaired children may be uneducable or they could negatively impact the education of their classmates
Due to the mentioned social factors there was an observed decrease in the number of pupils at special schools, from 51,152 in 1939 to 38,499 in 1946. This however proved to be a false dawn as from 1945 to 1955 with an increase in infrastructure figures rebounded from 38,499 to 58,034 respectively (Warnock, 1978, p. 22). An observer could recognise that the act had been generally ineffective in terms of inclusion of the impaired in the mainstream.
Eventually the advances in medical treatment meant that the numbers of children with serious conditions had reduced 'dramatically' (Armstrong, 2007, p. 561). According to Hurt (1988, p. 172) due to the lower demand for care, they became more likely to be introduced into mainstream education. The next large step towards inclusion came in the form of the Education (Handicapped Children) Act 1970, which removed powers from previous acts that deemed pupils uneducable, specifically the eradication of section 57 of the Education Act of 1944. The acts' introduction indicates its disregard for the opinion that some children are uneducable in the school environment.
The Warnock report in 1978 explained that the 1970 act reduced the segregation of the impaired by removing "the power of health authorities to provide training for these children and required the staff and buildings of junior training centres to be transferred to the education service" (Warnock, 1978, p. 28). Warnock also held the belief that due to the act, all 'handicapped' children were now included in the 'framework of special education' (p. 35). Evidence of the effectiveness of the act is the increase from 11,027 to 21,245 in the number of pupils attending special classes and units in mainstream schools from 1973 to 1977 respectively (p. 99), although this could be viewed as another form of segregation.
The Education Act 1981 provides further evidence of an attempt at inclusion of impaired children in mainstream education, notably section 3. Where in previous acts there has been opportunity to evade responsibility to this demographic (The Education Act 1944 section 57 (4)), the wording is highly specific in that a child is not simply deemed incapable of education, it requires that provisions be taken in collaboration with parents for 'provisions other than in a school'. In addition to this were implemented the specific assessment for eligibility for provisions. Section 15 (4) (a) also gives power to the LEA to act when they are of the opinion that "the school selected by the parent as the school to be named in the order is unsuitable to the child's age, ability or aptitude or to his special educational needs" removing possible abuse of powers by parents when deciding their child's educational format (www.legislation.gov.uk).
Repeatedly however it seems that there is evidence of avenues for exclusion notably Section 2 (3) presuming that the education of pupils sharing a class with an impaired child would be negatively impacted, and that the education of an impaired pupil should have a price limit.
Discrimination is described by the Disability Discrimination Act 1995 section 5 (1) as the unjustifiable (with evidence), less favourable treatment of a disabled person with respect to others without disability (www.legislation.gov.uk). Discrimination in education contradicts Rawles' understanding of social justice and tt could be argued that by definition, inclusion cannot take place whilst there is discrimination. Although wary of political rhetoric Collins (2003, p. 21) finds some foundation in the excerpt taken from the Department of Trade and Industry, supporting the argument that 'Discrimination usually amounts to exclusion in some form' (cited in Collins, 2003, p. 21). This argument is supported by Ballard (1999, p. 3), explaining that "seeing students such as the disabled as 'other' creates the discrimination of 'them' and 'us', valued and not so valued, that is a basis for exclusion."
Special Educational Needs and Disability Act 2001
Having gained some understanding of the historical progression of inclusive education in England, there could be justification for a claim that inclusive education has taken place officially from the Education Act of 1944. By definition, as mentioned, inclusive education is the 'process' of reducing exclusion and increasing participation, and this act and others following it, although having outlets for exclusion, are part of a process and therefore there are grounds for the affirmation. A process therefore also suggests that constant development of legislation is necessary. The Special Educational Needs and Disability Act 2001 addresses discrimination in education directly, it also seeks to renew and improve the 1995 Disability Discrimination Act with respect to education (www.legislation.gov.uk), which contained limited legislation on attitudes toward the disabled and dealt mostly with administrative issues (www.legislation.gov.uk).
Subsection 11 (1) of the act - also subsection 28A in the Disability Discrimination Act 1995 - entitled, 'Discrimination against disabled pupils and prospective pupils', addresses the largely negated subject of discrimination of the impaired in the education system (see Appendix 1 for a copy of the legislation as enacted). There is an attempt to eradicate discrimination from all aspects of the schooling process, including the entry (28A (1)), the services provided for the purpose of education (28A (2) and (3)), and exclusion (28A (4)). Subsection (1) (a) makes it unlawful to discriminate with regard to determining admission, this issue shall be raised again when investigating the number of SEN pupils attending independent schools. Subsection (2) perhaps relates more than the others to the actual services provided by an institution, with emphasis on the education and 'other services' provided to pupils. It can be viewed as directly related to the medical model of disability in education, in that provisions should be made to make the scholastic experience of the impaired equal to that of the unimpaired.
For the period 1994 to 2000 there was an annual increase of pupils with SEN in maintained mainstream schools in England, with the rate of increase reducing slightly after 1996 (statistics available in Appendix 2). After 2001 there is no notable change in the numbers of SEN pupils in maintained mainstream schools, it could be interpreted that the 2001 act had an adverse effect on the inclusion effort as the uninterrupted increases over the previous years had halted and levelled off. If the act was fully executed, due to its more inclusive nature as supported by the theory that discrimination relates to exclusion, one could expect at least an increase of the numbers of special educational needs pupils in maintained mainstream schools in line with the trends prior to 2001. Of course this is working on the assumption that there is no saturation in the numbers of SEN pupils overall.
The five years from the introduction of the pupil referral units in 1995 to 2000 for which there is definite available data there is a uniform increase. A five year period also compares favourably to the number of years that a pupil spends in a primary or secondary school in England. One could ascertain that the numbers increased annually due to the entry of the post pupil referral unit generation, again providing that there are relatively steady quantities of pupils with special educational needs per year group. This would explain the saturation observed post 2001, with new pupils replacing those who complete their schooling.
Undoubtedly the proportion of mainstream educated SEN pupils from 2001 onwards is higher than at any point since 1994, with roughly 52% increasing to an estimated 61% (ONS, 2004). The reasons for this is likely to be due to the introduction of the pupil referral unit rather than any shift in inclusion policy, however the fact that these pupils attend mainstream school rather than special or independent schools can be viewed as a success for inclusion. The consistent figures for special schools is evidence for this, although there is no significant decrease in the number of pupils in special schools, this could bring in to question if enough progress is being made to convince parents that inclusive education is the ideal environment for a child to develop. O'Connor (2006, p. 542) analysing a study held in Northern Ireland on parents perceptions of inclusion found that parents had reservations about their children's involvement in inclusive education of mainstream schooling and that special schools had an important role. A similar study for England could provide some clarity on why special schools still teach such a large proportion of impaired pupils.
Comparatively the volume of SEN pupils attending independent schools has remained consistent and when contrasted with the other two types of school, it can be said that the numbers are quite insignificant. In 2003 under 3% of all SEN pupils attended independent schools (ONS, 2004), which falls below the 7% share of all pupils that attend independent schools in England (DfES, 2003). One could question if there is a level of discrimination of pupils that require special educational needs in the selection process of independent schools and thus failing subsection (1)(a) of the act. As of 2009, the Office for National Statistics shows in Table 1.4 (DCFS, 2009), that the trends observed in 2003 have not altered significantly (see Appendix 3 for Table 1.4), leading an observer to assume that the legislation has done little to effect previous practice in this area, however it should be emphasised that there could be other determining factors.
The aims of this paper were to emphasise the importance of inclusion, to gain an understanding of the history and nature of inclusion of impaired pupils in England and to ascertain the effectiveness of the said piece of legislation taken from the Special Educational Needs and Disability Act 2001. Theoretical evidence was drawn from literature to emphasise the importance of inclusion in education, drawing on the links between social justice and discrimination. In contrast however Wendell (2001) stresses that social justice may in some instances have no impact upon the physical or psychological stresses that impairment can cause (p. 18)
An analysis of the history of special education was carried out, attempting to assess the inclusive nature of education at various intervals throughout English history. Questions arose about its inclusive nature and if any progress, however small can constitute inclusion based upon the definition provided by Booth et al. An attempt to verify how effective legislation is in an effort to reduce discrimination towards the impaired in education and thereby improve inclusion showed that there are not necessarily great statistical differences in terms of numbers of SEN pupils in mainstream schools since the legislation was implemented in 2001. The stagnant nature of the number of pupils at special schools, as opposed to the increases post the 1944 act, shows that there have been effective measures introduced over the past fifty years. Statistically, perhaps the most effective intervention to promote inclusion were the Disability Discrimination Act 1995 and the introduction of the pupil referral units, resulting in a large increase of SEN pupils in the mainstream. However statistics do not tell the full story, at this point it is pertinent to ask the question, what are the aims of the education system? Maynard and McGrath (in Behrman and Stacey, 1997) suggest that schooling provides a preparation for full participation in adult life and society (p. 125), inclusion seeks to address this aim, both for the impaired pupils themselves but also for those without special educational needs. Hornby (1999, p. 156) supports this argument stating "as much social integration as possible should be encouraged, for the benefit of all pupils."
Questions were also raised about attitudes toward inclusive education of the parents of impaired pupils were also raised, highlighting possible avenues of further study in order to provide an improved overview of the issue. Studies comparable to O'Connor's, investigating parents' perceptions of inclusion and their effects on the process of selection of schooling method for England could be of benefit. Although a similar investigation has been done by Waddington and Reed (2006), it is mostly based on a specific impairment (ASD) rather than a general study encompassing all special educational needs. Other possible studies could include a comparable study to that of Lindsay (2004) in Australia, who sheds light on the numbers of students who face disability discrimination and the difficulties they face in an inclusive education system, in order to establish if inclusion has emotional disadvantages to pupils. It is important to understand that although academic achievement is important, it should also be the desire of educationalists to provide pupils with a positive and ever improving school experience and studies to assess the truth of this in England are certainly necessary.
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