UP Centre for Child Law continues fight for consideration of learners with disabilities amid COVID-19

Posted on November 25, 2020

World’s Children Day on 20 November and Disability Awareness Month in November presented 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 well-being of children with disabilities.

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 national lockdown affected all children’s access to 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 a gradual return to “ordinary school” for learners in accordance with procedures set out in the 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 those who attend special schools would return. No guidance was 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 pandemic. Learners with disabilities were 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 well-being.

From April this year, civil society organisations, including organisations for persons with disabilities, made several attempts to engage as a collective with the Department of Basic Education’s (DBE) Inclusive Education Directorate, 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 who continued to remain at home.

Furthermore, the Centre for Child Law, represented by Equal Education Law Centre, wrote letters of demand to the Minister of Basic Education, requesting information on the reopening of schools. Particular focus was placed on, among others, the provision of adjusted PPE, such as masks and sanitisers to special schools, special school hostels and special care centres, the criteria that is used to monitor school readiness, and continued support to learners who remained at home.

Despite attempts to meaningfully engage with the Inclusive Education Directorate, 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 being taken into consideration in the DBE’s COVID-19 directions, planning and guidelines.

Lacklustre responses from the DBE and high levels of uncertainty resulted in the Centre for Child Law, represented by Equal Education, launching 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 were returning to special schools and special school hostels, as well as to those who were remaining at home during the pandemic.

An agreement was reached between the Centre for Child Law 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 well-being of learners with disabilities would be protected while they accessed education. The required revisions were eventually made after deliberations with the DBE. 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 DBE cannot conduct business as usual in how they care and provide for the most vulnerable in society. More proactive, rather than reactive, responses are needed to ensure a safe world for all our children.

- Author Zita Hansungule, Centre for Child Law at the University of Pretoria.
Published by Hlengiwe Mnguni

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