Once you start looking at summer born children and the 2010 Equality Act, it’s pretty difficult to stop.
And once you throw summer born children with additional needs into the mix, it becomes even harder.
In this article, Summer Born Campaign member Catherine Mackinlay Henderson explores the similarities and differences in terms of the LEGAL RIGHTS of summer born children, with and without SEN, SSEN/EHCP, and explains who the Equality Act best protects, and how the UNCRC is also applicable.
The current inequality of access to a full and fair education for all summer born children in England is unquestionably evident, but what does the law have to say about it?
On May 3rd, there were more protests organized by the excellent SEN Advocate, Evelyn Ashford, as she sought to bring more media publicity to the widespread SEN maladministration, legal loop holes and lack of governance up and down the land.
Most parents with a vested interested in SEN know of Evelyn’s work through Education Equality, her advocacy group that helps thousands of parents navigate the SEN maze.
Underpinning some of this maladministration is the Equality Act: the 2010 legislation that fused a range of existing laws into an overarching Act of Parliament in order to protect society’s most vulnerable.
The recent evidence review by the Select Education Committee on summer born children finally paid lip service to the fact that England’s summer born children are more likely to be misdiagnosed with SEN due to the socio-political aspirations of the DfE.
But, the interplay, complications and similarities between SEN and summer born children doesn’t stop there.
They are both vulnerable in different, yet sometimes similar ways.
Who is More Equal under the Equality Act?
At the outset, a child commencing education at CSAge who has SEN is subject to protection from the 2010 Equality Act.
Therefore, any school failing to make ‘reasonable adjustment’ for a child with additional needs could be seen to be discriminating against that child and this would hold weight at SEND Tribunal.
The same argument should also apply to those SEN summer born children who require education ‘out of year group’, since education ‘out of year group’ could be viewed as a fairly ‘reasonable adjustment’ to make.
Yet most local authorities insist on parents applying for a school place (together with any maintenance of ‘out of year’ group) at key transfer points in their ‘chronological’ age group (see Surrey County Council’s policy for example).
In essence, these non-SSEN/EHCP, SEN children must follow a completely different process to their peers, and continue to reapply for their ‘out of year group‘ place – even though it would seem discriminatory to remove it.
Because only SEN children with SSEN/EHCP could expect ‘out of year group’ education to be written into their statements and plans.
This obviously leaves a gaping hole for SEN children without SSEN/EHCPs who are equally subject to and protected by the principles of the Equality Act (2010), but do not have access to the same paperwork trail.
Instead, they are expected to follow a different application process not only to their SSEN/EHCP peers, but also to those in their adopted year groups, possibly placing them at a disadvantage.
Has the DFE really thought this through when it comes to the impact of equality on summer born SEN?
Summer Born Equality or Inequality?
And where does this leave the summer born child without additional needs?
This is a much harder question to answer.
Although age is NOT a protected characteristic under the 2010 Equality Act, when it comes to education, age IS a protected characteristic when it comes to indirect discrimination.
At present, summer born children are the only group of children in the country who have no automatic right of entitlement to enter Reception class at CSAge.
And if a summer born child is lucky enough to escape the propensity for SEN misdiagnosis by the LA agreeing to a Reception class at CSAge, there is no legal protection for a summer born child to continue their educational career in that ‘adopted year group’ – i.e. there is no entitlement to a continuous National Curriculum nor the steps of progress expected within it.
Fundamentally, there is nothing to protect summer born children from missing an entire year of National Curriculum and being subject to a different admissions process in order to reapply for any ‘deceleration’ at subsequent transfer points.
The message is clear:
We can’t discriminate against children with additional needs, but we can discriminate against summer born children.
Now while we know that summer born children are not a homogenous group, they are certainly a vulnerable group of children entering the education system without entitlement.
And it would seem that for once, SEN parents with SSEN/EHCPs for their summer born child can breathe a huge sigh of relief because in this instance, it’s another group of children being actively discriminated against.
And while it’s true that some summer born children have been ‘lucky’ enough to have been offered unchallenged entry to Reception class at CSage with the promise of a subsequent full education, others have not.
In a postcode lottery system, it really is the case that some summer born children are definitely more equal than others – both in practice, and in law.
Written by Catherine Mackinlay Henderson
Edited by Pauline Hull
Please note: this article has not been written by trained legal advisors.
For free legal advice, please contact IPSEA.