This module is concerned with the definitions of disability contained within UK legislation.
If children/young people are disabled, they have entitlements arising from their assessed needs. This section identifies 'what counts as disability' within the context of different Acts of Parliament.
In legislation, words can have very specific meanings, and their definitions can vary over time and between agencies (e.g. education, health, social care), which can cause confusion and difficulty when applying the law. One example is the different definitions of 'child', 'young person' and adult'. Click here to read more.
You will also have seen discussions around the use of the terms 'disabled' and 'disability'. There is ongoing debate about what is meant by these terms and how to use them in different contexts. The following slides illustrate this.
UK equality law and education law have different understandings of disability. Equality law is based on the premise that it is Society’s barriers that cause people to experience dis-ability (the ‘social model’ of disability). However, the assumption in education law is that people’s impairments are the cause of ‘dis-ability’ (the ‘medical model’ of disability), rather than Society’s lack of flexibility in accommodating them (Centre for Studies on Inclusive Education (CSIE), 2013).
Under the Equality Act 2010 (which incorporates all earlier anti-discrimination
|‘…placed a statutory duty on schools to promote disability equality
and to make reasonable adjustments so that disabled pupils, or prospective pupils,
were not treated less favourably than their non-disabled peers. From September 2012,
schools had a duty to provide auxiliary aids and services.’
(CSIE, 2013; italics added)
The Children and Families Act 2014 definitions of ‘special educational needs’ and ‘learning difficulty or disability’ are very similar to those in the 1996 Education Act. Most significantly, reference to ‘disability’ has been included in defining ‘special educational needs’ (section 20).
Consider all the changes made to the 1996 definition of ‘special educational needs' between the Education Act 1996 and the Children and Families Act 2014. What do you think might be the reasons for the changes?
|'A child has Special Educational Needs if he has a learning difficulty
calls for special educational provision to be made for him.'
||'A child or young person has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her.'|
|Education Act 1996||Children and Families Act 2014|
To see the full section 20 definition click here. Under the definition of special educational provision (section 21) there are additional definitions of ‘health care provision’ and ‘social care provision’.
The Care Act 2014 uses the definition of disability in the Equality Act 2010 (section 6).
Under the Care Act 2014, a local authority considers making provision to meet the needs of individuals over the age of 18 years (or who are under 18 years but transitioning to adult services) who, now or in the future, are likely to need care and support. This may be due to a disability, a physical or mental impairment (other than a disability) or other categories of need. In this context, the Act also addresses the needs of carers.
The term ‘carer’ means ‘an adult who provides or intends to provide care for another person’ unless through contracted or voluntary work.
Section 6 of this Act states that a person is disabled if they have a disability which is defined as:
- Physical or mental impairment;
- Impairment that has a substantial and long term adverse effect on their ability to carry out normal day-to-day activities.
Where treatment or the provision of aids reduces the disabling effects of a condition that would otherwise meet the above criteria, then the impairment is still considered to have a 'substantial adverse effect'.
An individual (i.e. a child, young person or adult) with a progressive degenerative condition meets the criteria if their condition is likely to result in a 'substantial and long term adverse effect' in the future, even if it does not currently do so.
In order to interpret this definition, it is necessary to understand the meanings of the terms used. This Act contains defined meanings for specific terms, but it should be borne in mind that these terms may have different meanings when used in other legislation.
Further discussion of the application of these definitions is available in the Equality Act 2010 Guidance.
The implications of the Equality Act 2010 for schools and services are considered
in this module.
Take a look at the Equality Act 2010 Guidance to find out more.
Normal day-to-day activities
So far in this section we have considered the applications of the Equality Act 2010; however the Children Act 1989 is also relevant as it contains a definition
of disability that is applicable within other
Children/young people with disabilities are 'in need' as defined by section 17(10(c)) of the Children Act 1989 and are entitled to a range of support services depending on their circumstances.
The definition of disability given in Part III of this Act is more medically orientated than the Equality Act 2010.
Section 17(11) of the Children Act 1989 states:
'...a child is disabled if he is blind, deaf or dumb or suffers from mental disorder of any kind or is substantially and permanently handicapped by illness, injury or congenital deformity or such other disability as may be prescribed.'
The evolution of contemporary definitions can often be tracked through prior legislation. For example, the definition of disability within the Children Act 1989 reflects the definition that is applied to adults under the National Assistance Act 1948 (section 29), and is the definition that also applies to children/young people under:
- The Disabled Persons (Services, Consultation and Representation) Act 1986 (section 16);
- The Chronically Sick and Disabled Persons Act 1970 (section 28a).
Children Act 1989 (schedule 2) requires local authority social services departments
to provide services for disabled children and to maintain a ‘Register of children
with disabilities‘. The local authority should use the register to plan provision
and budget to meet likely future needs.
Although local authorities must invite parents to register their children with disabilities, parents do not need to do this, and the child's/young person’s details can also be removed if they or their parents request this. At age 18 years, young people’s information is automatically removed from the register.
There is no register of children ‘in need’ as defined by the Children Act 1989, section 17).
Although it is no longer statutory (since 2002), Special Educational Needs Coordinators (SENCOs) in many schools maintain a register of children/young people with Special Educational Needs/Disabilities (SEND). This is a key tool in a school’s special educational provision mapping, support planning, intervention monitoring, policy development and future funding need identification.
Think of a child/young person that you know (in or out of school) and consider whether or not they fall within the legislative definition of 'disabled'. Use the following questions to help you.
- Do they have difficulty with any of the following 'normal day-to-day activities'?
Click here to read about the typical tasks or activities that a disabled child/young person might have particular difficulty with.
- Is their difficulty caused by an underlying impairment or condition?
- Has their impairment or condition lasted, or is it likely to last, for more than 12 months?
- Is the effect of their impairment or condition 'more than minor or trivial'?
If your answers to questions one to four are ‘yes‘, then the child/young person is probably disabled under the Equality Act 2010. Even if they receive medical or other treatment to reduce or remove the effects of their condition, they may still be disabled if the effects would recur if their treatment was stopped.
Source: The activity is abridged from: Implementing the Disability Discrimination Act 2005 in Schools and Early Years Settings (Department for Education and Skills, 2006).
Legislation and guidance
- National Assistance Act 1948*
- Chronically Sick and Disabled Persons Act 1970
- Disabled Persons (Services, Consultation and Representation) Act 1986*
- Children Act 1989
- United Nations Convention on the Rights of the Child (1989)
- Equality Act 2010
- Equality Act 2010 Guidance (2010)
- Equality Act 2010 and Schools (2014)
- Children and Families Act 2014
- Care Act 2014
* These Acts are likely to be replaced in whole or
in part by the Children and Families Act 2014
- Centre for Studies on Inclusive Education (2013) ‘Historical perspective on educational policy and provision’. [Online at: video: https://www.youtube.com/watch?v=XO0sJEbNo-s&feature=youtu.be ; transcript: http://www.csie.org.uk/resources/animatedvideotranscript.docx; accessed: 26.1.15]
- Royal College of Nursing (2014) Caring for Children and Young People: Guidance for nurses working in the independent sector. London: RCN.
- Department for Education: https://www.gov.uk/equality-act-2010-guidance
- Equality and Human Rights Commission: http://www.equalityhumanrights.com/legal-and-policy/legislation/equality-act-2010