The government is facing legal action over its failure to introduce a vital code of practice that would make it easier to protect disabled children from discrimination at school.
Even though new laws on discrimination in education under the Equality Act 2010 have been in force since 2010, the government has yet to lay a code of practice before parliament.
Such a code would provide clear statutory guidance for parents, schools and lawyers on the equality duties that schools have to meet under the act, which became law just before the Labour government left office.
A code of practice was expected late last year, but its publication has become caught up in the government’s so-called “war on red tape”.
The Equality and Human Rights Commission (EHRC) had been asked by the government to draft the code of practice, and subsequently carried out a wide-ranging consultation.
But the Conservative education secretary Michael Gove has apparently told the watchdog that a statutory code was “unnecessary red tape”.
Now a charity, Independent Parental Special Education Advice (IPSEA), which advises parents of disabled children on their education rights, has taken the first step in a process that could lead to an application for a judicial review.
IPSEA has written to Gove to ask him to explain his failure to issue a code of practice.
Jane McConnell, IPSEA’s chief executive, said the legal letter had been a last resort after it failed to persuade someone from the EHRC or Department for Education (DfE) to “sit down and discuss” why the code had not yet been published.
She said: “It has been very difficult to get a clear answer as to whether the EHRC or the Department for Education are the people making the decision not to issue a code of practice.”
From September this year, under new legislation governing exclusion of children from school, the Special Educational Needs and Disability (SEND) tribunal will be able to hear cases involving disabled children whose parents believe they have been excluded permanently from school due to disability discrimination.
The tribunal will have the right to reinstate those children in their schools, an option not open to the newly-established independent review panels that will hear other such appeals under the coalition’s education reforms.
A code of practice would have made it clearer what disabled children’s rights were in such cases, and made it easier to challenge any discrimination.
McConnell said: “Parents need to understand the law in this area, and so do schools. It is about making clear what the duties are and what they mean in practice.”
The EHRC has so far declined to comment, but a spokeswoman pointed to information on its website which states that it had not been able to issue a code for schools because the government was “keen to reduce bureaucracy around the Equality Act 2010, and feels that further statutory guidance may place too much of a burden on public bodies”.
The website says: “It is the commission’s view that, rather than creating a regulatory burden, statutory codes have a valuable role to play in making clearer to everyone what is and is not needed in order to comply with the Equality Act.”
The commission will instead issue a “non-statutory” code of practice which will still give a “formal, authoritative, and comprehensive legal interpretation” of the education parts of the act.
A DfE spokeswoman said the government had issued its own non-statutory advice on the act for schools in March this year.
She added: “We have received notice of possible action from IPSEA and we are currently considering our response.”
