Op-Ed:  UP Law's Centre for Child Law fighting to ensure that learners with disabilities are not left behind in the provision of safe education in a COVID-19 South Africa

As we mark World’s Children Day on 20 November 2020 and Disability Awareness Month in November, it is an opportune time to reflect on how the experience of COVID-19 has brought into greater light the urgent need to affirm, protect and realise the rights and wellbeing of children with disabilities. This piece will briefly articulate how COVID-19 brought to the fore the fact that children with disabilities in South Africa are still left behind and the need to be more proactive in this regard.

The restrictions brought on by the COVID-19 national lockdown, affected all children’s access basic education, including children with disabilities. As restrictions were eased, mechanisms were put in place to facilitate phased in access to basic education, this meant gradual return to “ordinary school” for learners in accordance with procedures set out in Directions, guidelines and standard operating procedures developed by the Department of Education. As learners in ordinary schools began to go back to school there was great uncertainty about how they would return to special schools. There was no guidance given on the health and safety measures that would be put in place to ensure that special schools and special school hostels were safe spaces for learning and teaching in light of the COVID-19 pandemic.

Learners with disabilities where left in limbo and clarity was needed from duty bearers about what would be done to facilitate their access to education in spaces that ensured the protection of their health and wellbeing. From April 2020, civil society organisations, including Organisations for Persons with Disabilities (OPDs), made several attempts to engage as a collective with the South African Department of Basic Education’s (DBE) Inclusive Education Directorate (IED), to monitor progress being made to ensure that the necessary health and safety measures were in place for learners with disabilities. This included the provision of adjusted and appropriate personal protective equipment (PPE) to officials and learners, as well as ensuring the provision of educational and therapeutic support to learners with disabilities during lockdown, during their phased return to school, and for those learners who continue to remain at home.

Furthermore, the Centre for Child Law (CCL) in the Faculty of Law (UP Law) at the University of Pretoria (UP), represented by Equal Education Law Centre (EELC), wrote letters of demand to the South African Minister of Basic Education requesting information on the re-opening of schools, with a particular focus on, amongst others, the provision of adjusted PPE such as masks and sanitisers to special schools, special school hostels and special care centres, the criteria that will be used to monitor school readiness, and continued support to those learners who are at home. Despite attempts to meaningfully engage with the DBE IED, civil society received delayed and unsatisfactory responses from the Minister. This left organisations concerned that the very specific needs of thousands of learners with disabilities across the country were not taken into consideration in the DBE’s COVID-19 Directions, planning and guidelines.

Lacklustre responses from the DBE and high levels of uncertainty caused the CCL, represented by Equal Education, to launch an urgent application in the Pretoria High Court in July 2020, against the Minister of Basic Education. The court application dealt with the Minister’s failure to adequately provide support, as well as proper health and safety measures, to all learners with disabilities who are returning to special schools and special school hostels, as well as to those who remain at home during the COVID-19 pandemic. An agreement was reached between the CCL and the Minister, which was made an order of court. In terms of the court order the DBE was required to revise its Directions, guidelines and standard operating procedures in order to set out how the health and wellbeing of learners with disabilities would be protected while they accessed education. The required revisions were eventually made after deliberations with the Department of Education. What remains is continuous monitoring of the implementation of the revised Directions, guidelines and standard operating procedures.

The world is not the same, COVID-19 has changed things drastically. Duty bearers, such as the Department of Basic Education, cannot go on business as usual in how they care and provide for the most vulnerable. More proactive, and not reactive, responses are needed to ensure a safe world for all our children.

- By Zita Hansungule, Centre for Child Law, Faculty of Law, University of Pretoria