Baroness Darcy de Knayth (Crossbench)
In moving Amendment No. 217, I shall speak also to Amendments Nos. 223, 226 and 227, tabled in my name. It is a mixed bag in a larger sack about information, advice and legal protection for children with special educational needs. The amendments are very different, and I shall need to speak to each in turn. I hope that Members of the Committee will therefore bear with me, but will be consoled by the thought that they will hear from me only once today.
Amendment No. 217 ensures that a head teacher excluding a pupil is required to provide information to the responsible body about any special educational needs of an excluded pupil, and that that body takes account of the information when deciding on reinstatement.
There is information to suggest that sometimes an inappropriate SEN provision, or a failure to make such a provision, leads to the exclusion of a pupil with special educational needs. That point is underlined by the National Autistic Society, whose 2000 report on inclusion found that 21 per cent of children with autism spectrum disorders are at some stage excluded from school. It shows that frustration from lack of understanding leads to challenging behaviour, which in turn results in exclusion.
This amendment does not seek to prevent the exclusion of children with special educational needs when necessary. Nor does it impose further work on the school, because the information will be available. But the special educational consortium feels that it may prevent inappropriate exclusions stemming from a failure to meet the special educational needs of some children.
I turn briefly to Amendment No. 223, which would ensure that, where a claim of disability discrimination was being heard as part of an exclusion appeal, a legally qualified person with an understanding of the DDA would chair the appeal panel. I shall not bore the Committee by repeating my earlier arguments on Amendment No. 199 on admission appeals. The same questions and arguments apply. I am delighted to see that the noble Lord, Lord Peston, is back in his place and in good voice. As the Minister will understand, this whole special educational needs package is designed to wind him up yet one further notch.
I shall be interested to hear the Minister's thoughts on Amendment No. 219, tabled by the noble Lord, Lord Lucas. I think this amendment means that appeals could be heard by the SEN Disability Tribunal, just as appeals for fixed term exclusions will from September go to the Special Educational Needs and Disability Tribunal, where claims are made under the DDA for fixed term exclusions. Those panel members will have received training in DDA duties.
I ask the Minister to assure me that where a claim of disability discrimination is made at the same time as an exclusion appeal, the clerk—if not the chair—of the independent appeals panels for exclusions will be legally qualified; that the clerk will have received training on the DDA duties; that panel members will have received training on the DDA and will have access to the clerk's legal knowledge; otherwise, in view of the fact that those facing fixed term exclusions will go to the SENDIST and those children facing the seriousness of permanent exclusions may lose out, we may have a two-tier system.
I turn to Amendment No. 226, which would ensure that parents of children with special educational needs who are excluded from school are referred to an independent source for information and advice on their and their children's rights. It is worth reminding the Committee that children with statements of special educational needs are seven times more likely to be excluded than other children.
IPSEA's casework—I declare that I am a patron of IPSEA—shows that children with statements are excluded for a variety of reasons; that simply appealing for reinstatement is not always relevant; and that, even when it is, it is rarely a sufficient remedy on its own. Children may be excluded because the LEA has failed to put in place the support that it has asked for in its statements or because the statements are so vaguely written that the parents and the school have no clear idea of how much or what kind of provision is needed. A head teacher may exclude children in order to highlight the problem, or teachers may not know how to manage particular behaviour that is not threatening or aggressive but which disrupts the work of the class—in other words, a cry for help. There are many more reasons.
Similarly, there are various or a combination of actions to best help the child: an immediate review; a reassessment leading to a statement quantifying provision; a change of school, and so on. Parents need to explore all those possibilities. They also need to consider whether to appeal against exclusion—whether they actually want the child to return to school. This amendment would guarantee parents contact with an independent organisation or person who can help them reach an informed decision.
In conclusion, I turn to Amendment No. 227. This amendment would ensure that a decision by a governing body or an exclusion appeal panel to reinstate a child who had been excluded would result in a resumption of the child's education. The Members of the Committee may think that there would be absolutely no necessity for this amendment. But, following the judgment in the case of L v Governors of J School (2001), an order for reinstatement by an exclusion appeals panel may lawfully be interpreted by a school as a requirement to admit a child on to the school premises, but not to their class or to any class or any particular educational provision. The effect of that judgment is to vitiate potentially every decision made by a governors' discipline committee or an exclusion appeal committee that an excluded child should be reinstated.
In that particular case, the reinstated child was kept out of lessons because the teachers' unions threatened to strike when they learnt of the reinstatement decision. The court held that, given the damage that would have been caused to the education of all children in the school, the head acted reasonably in bowing to the unions' threat. But Lord Justice Laws, in a rider to the judgment, raised the possibility of teachers' unions as public bodies being susceptible to judicial review because of such a threat. He suggested that if a trade union takes a position designed in terms to frustrate the lawful decision of Parliament's delegate—here the appeal panel—that might be vulnerable as a matter of public law as being calculated to undermine the rule of law.
In this Bill we have an opportunity to resolve what has suddenly become a very volatile legal situation. The amendment invites Parliament to decide what powers it intends appeal committees to exercise in the future, rather than leave it to litigation and the vagaries of case law. It would place a duty on a governing body to ensure that a child received education following reinstatement. It would not limit the powers of a discipline committee or an appeal committee to uphold an exclusion by rejecting a parent's appeal for reinstatement. I hope that the Minister will be able to respond positively to this issue or assure me that it will be dealt with in some other way.
I return to Amendment No. 217, which would ensure that the head teacher excluding a pupil is required to provide information to the responsible body about any special educational needs that such a pupil may have, and that the responsible body take account of the information when deciding whether or not to reinstate an excluded pupil. I beg to move.