Special Educational Needs and Disability Bill [H.L.]

– in the House of Lords at 3:00 pm on 20th February 2001.

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Photo of Baroness Blatch Baroness Blatch Conservative 3:10 pm, 20th February 2001

moved Amendment No. 1:

Before Clause 1, insert the following new clause--

(" .--( ) In the implementation of this Act by local authorities, schools, parents, and all concerned with the welfare of children and young adults who have some form of disability or learning difficulty, the following principles shall be observed.

(1) The best and most appropriate available education shall be offered--

(a) to a disabled pupil,

(b) to a pupil with a statement of special educational needs maintained under section 324, or

(c) to a pupil with special educational needs but with no statement.

(2) Any requirement in this Act to prefer any particular type of school must always be of secondary consideration to that of making available the best and most appropriate available education for each particular child.

(3) Any placement of a pupil with special needs in a mainstream school must not be to the detriment of the best and most appropriate education available for the other pupils in that school.

(4) The wishes of the parent and the pupil must be respected at all times.").

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, during our discussions of the Bill in Committee, it was obvious that noble Lords from all sides of the House wished to do the best that was possible and affordable for children with special educational needs, with or without a statement, and later, in Part II, Chapter I of the Bill, for children with some form of disability.

The only acceptable purpose of a Bill of this kind is to make the best possible provision for children and young persons. Any consideration of convenience to local authorities or schools must be secondary to the welfare of the child. Ideology should not come into the equation at all. It is a matter of where best, and how best, to educate children. Finance comes into the matter, and any proposed changes to our arrangements must be properly financed, otherwise they are best not done.

The Bill places much emphasis on putting children with special educational needs into mainstream schools. Here and there, the Bill offers limited exceptions to that imperative. In the light of our discussions in Committee, and the assurances given by the noble Baroness the Minister it seems to me essential for the Bill to reassert the principle that the welfare of the child should come first. Where best to assert that principle than by making it the first clause of the Bill?

My proposed new clause is in no way controversial. It simply qualifies the rest of the Bill with something with which we all agree, namely that the needs and welfare of the child should remain paramount. If it is so obvious that that need is paramount, some might say that it is unnecessary to say so. But, my Lords, I believe that it is necessary. We are not formulating only guidelines, which have no force in law. We are formulating law, a law which might be challenged in the courts, a law which must be followed by local authorities, schools and parents, and a law which has to be followed not just by this Government but by subsequent ones as well.

In asserting at the start that the overall purpose of the Bill is to provide as best we can for children with special educational needs, we shall not only guide the lawyers as to our intentions; we shall clearly and specifically kill off rumours some noble Lords have already heard that in some way the Bill is intended to reduce our expenditure on children with learning difficulties or disability, or that it is intended to close all or some of our most special and specialist schools.

I trust that the Minister will confirm that it is not the Government's intention to do either of those things. The proposed new clause would write into the Bill the clear intention that the interests of the child are a priority. I beg to move.

Photo of Baroness Blackstone Baroness Blackstone Minister of State (Education and Employment), Department for Education and Employment

My Lords, Amendment No. 1 would wreck the Government's proposals to strengthen the right to a mainstream place for children with special educational needs. The starting point is not a blank page. Rather, the Bill seeks to improve existing legislation. The amendment would have us retain provisions equivalent to those that have been abused and used unduly to limit inclusion in the past.

The amendment has been presented as a measure to ensure the right response for individual children with special educational needs or disabilities. Of course, we are all in favour of that, but the amendment could make it harder for pupils who deserve the benefits inclusion can bring to gain a place in a mainstream school. I remind noble Lords that our proposals to strengthen the right to a mainstream place, which also safeguard the interests of all children, have been welcomed.

The position of the Special Educational Consortium is that it wants,

"to ensure that the education provided for a child is appropriate for their needs".

The consortium feels,

"that the new inclusion framework"-- proposed by Clause 1--

"provides the best legislative framework to ensure this takes place".

The consortium is not in favour of amendments that would have the effect of reinstating "the first caveat". It believes that that,

"could lead to an unnecessary restriction on disabled children being offered a mainstream place".

The amendment would make the education of individual children paramount. It would entitle every child who has SEN or a disability to the best possible education. What is the best education? Is it a better education than that to which children who do not have SEN or disabilities have access? Is that really what the noble Baroness wants? We believe that the needs of individual children should be balanced alongside the needs of all children. If the,

"best and most appropriate available education" for a child with "some form of disability"--whatever those terms might mean--conflicts with the best and most appropriate available education for other pupils at the school, what is it intended should happen? The amendment provides no answer. Education involves balancing many interests. The Bill provides for that, but the amendment does not.

The amendment promotes the interests of children with SEN and disabilities over and above the needs of other children. It is not clear whether other children are being given comparable rights to the best possible education. If they are not, it would render the Bill incompatible with the Human Rights Act 1998.

Our policy for children with SEN and disabilities is clear and simple. Every child has the right to have his or her needs identified, assessed and met. Every child has the right to a broad and balanced curriculum, differentiated according to his or her needs. The SEN framework will ensure consistency and that the right support is put in place.

I suspect that the amendment has been promoted, at least in part, by the Opposition's belief that more children with SEN should be placed in non-maintained schools, though perhaps I am wrong about that. The Bill will not prevent or limit local education authorities from funding placements in the non-maintained sector. The duties of LEAs are unchanged, but they should seek to use resources efficiently. Excessive or inappropriate expenditure on one child can come only at the expense of other children. When appropriate, LEAs can name a non-maintained school in a child's statement and pay for the placement.

In answer to one of the questions of the noble Baroness, it is not the Government's intention to reduce in any way the amount of resources available to children who, with or without statements, have special educational needs. On the contrary, the Government are providing additional resources to make this Bill, when implemented, work in practice.

I turn to the second question of the noble Baroness. We have underlined a continuing and vital role for special schools. The facts speak for themselves. The size of the specialist sector has remained static, broadly catering for 1.2 per cent of all children. We do not envisage that that will change. Sometimes special schools are closed; sometimes they are opened.

The amendment also provides an absolute parental and pupil veto. The amendment reads:

"The wishes of the parent and the pupil must be respected at all times".

Again, the noble Baroness, Lady Blatch, did not feel that that was necessary for the 1993 Act. Such a veto could result in inappropriate and potentially damaging placements. What parents want is not necessarily always a reliable measure of what is right for the child. The SEN system is complex and parents sometimes need support and advice, hence the need for parent partnership services, which this Bill will establish.

We believe that the Bill strikes the right balance. It promotes inclusion and makes disability discrimination unlawful. It will enhance provision for all pupils with SEN. It protects the interests of all children. We believe that the amendment would seriously jeopardise that balance. I hope therefore that the noble Baroness is able to withdraw it.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, that was an extraordinary answer. The terms of the amendment read:

"The best and most appropriate available education shall be offered--

(a) to a disabled pupil,

(b) to a pupil with a statement of special educational needs maintained under section 324, or

(c) to a pupil with special educational needs but with no statement".

It says nothing about preference for maintained or non-maintained schools. It refers to what is right for the child in question.

The noble Baroness said a number of things in the course of responding to the amendment. But she made no argument against what is a clear, unequivocal statement at the beginning of the Bill that whatever provision is made should be in the interests of and consistent with the educational needs of the child. The noble Baroness said that the amendment placed an unnecessary restriction on disabled children. It is incumbent on the Minister to tell me exactly where that restriction appears in the amendment.

The noble Baroness also said that children with special educational needs are given provision over and above other children. The Minister has given assurances and reassurances on many occasions that there will not be an adverse impact on other children. My understanding therefore is that the aim of the education service is to give all children, with or without special educational needs, the best possible provision without disadvantaging one or the other.

The noble Baroness attributed to me wrong motives. In fact she said she might be wrong and I can say to her that she is very wrong. My motives are no different from what is incorporated in the first amendment; that is, that this Bill is about making appropriate provision for young people with disabilities and special educational needs. That is stated unequivocally in my suggestion for Clause 1. The noble Baroness might like to tell us how many special and specialist schools have in fact closed in recent times.

My last comment is one of almost incredulity. The noble Baroness said that parents and children have a veto. My understanding is that nowhere in this Bill do parents or children have a veto. They certainly have the right to have their views taken into account. In fact, the Government propose that children should have their say. But I should be pleased to be pointed to the part of this Bill where parents and/or children are given a veto.

Photo of Baroness Blackstone Baroness Blackstone Minister of State (Education and Employment), Department for Education and Employment

My Lords, the answer to the first question of the noble Baroness in relation to the effect that the amendment will have on disabled children or children with special educational needs is quite clear. The amendment reinstates the equivalent of the first caveat in previous legislation. That has been misused, and sometimes grossly so, to deny children who have a disability and, as a result, special educational needs access to mainstream schools when in fact those children could be educated in mainstream schools to their advantage and to the advantage of other children who will learn what it means to be disabled from being educated alongside children with disabilities. That is an important facet of mainstreaming which is sometimes forgotten.

The noble Baroness asked about the role of parents. I repeat that the amendment provides an absolute parental and pupil veto. It reads:

"The wishes of the parent and the pupil must be respected at all times".

That can only be interpreted to mean that if a parent wants something which is contrary to the advice given by teachers, people with medical expertise, doctors and others who have the knowledge and understanding of what is likely to best support and help a child, their wishes will have to be respected and taken into account and therefore the decision made that those parents want. I understand from legal advice that that is how the amendment will be interpreted.

Therefore for both those reasons I ask the House to accept the Government's commitments, made clearly throughout the Committee stage of this Bill, to specialist schools and to providing the resources necessary. This amendment runs a coach and horses through one of the Government's main commitments in this Bill; that is, to make available mainstream education for a higher proportion of those children who have special educational needs.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, I am not sure of the rules of the House. However, with the leave of the House I come back to my amendment. That response was even more extraordinary than the first answer. The amendment is unequivocal. It simply asks for,

"The best and most appropriate available education", to be offered. It does not talk about misuse. It does not allow for misuse. It is an unequivocal statement at the outset of the Bill. Therefore I do not understand that response.

If the noble Baroness says that respecting the wishes of parents at all times is an adverse proposition, then I am suspicious of the Government's motives and ask for the opinion of the House.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 86; Not-Contents, 162.

Division number 1 Adults Abused in Childhood — Special Educational Needs and Disability Bill [H.L.]

Aye: 84 Members of the House of Lords

No: 160 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

Photo of Baroness Blatch Baroness Blatch Conservative 3:38 pm, 20th February 2001

moved Amendment No. 2:

Page 1, line 11, leave out ("who should") and insert ("whom the parents of that child wish to").

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, the Minister's tone has hardened, and she has become more explicit, since our attempt to elicit a response in Grand Committee. There is clearly an unequivocal aim to ensure that more children with special educational needs are educated in mainstream schools. I had hoped the Minister would agree that a child should be placed wherever it is appropriate to place that child--a matter that we shall debate throughout the whole afternoon. That may, or may not, mean placing more children in mainstream schooling, but that should not be the overriding aim. The aim should be to provide the kind of schooling that is appropriate for the child.

I have re-read the response that I received from the Minister in Committee. She did not meet the objection that I raised to the present wording of the Bill. The Minister claimed that my amendment was unnecessary because under other legislation non-school based education is permitted. That being the case, the Bill is in conflict with the earlier provision. It follows that if a legal challenge were to arise--for example, in the case to which I referred in Committee where a person with ME was educated at home--lawyers on both sides of the argument would seize on the two contradictory pieces of legislation.

I am no lawyer, but let us suppose that the later legislation overrides the earlier provision. Clause 1 of the Bill as drafted states:

"This section applies to a child with special educational needs who should be educated in a school".

My amendment would replace "should" with the words,

"whom the parents of that child wish to".

Nowhere in the Bill, or in previous special needs legislation, is it stated who decides that a child should be educated in school. By implication, it is the local education authority which makes the decision, not the parents. In other words, according to the legislation, if a local education authority says that a child should be educated in school, the child must attend school. That is not right. It conflicts with the long-standing provision that all children of a certain age must be educated but that that education need not necessarily take place in a school: it could be provided at home or by tutors, or it could be a mixture of both.

I can find no reason in the Minister's reply in Committee as to why this simple amendment is not acceptable. The noble Baroness tells us that the wording in the Bill still allows parents to choose to educate a child with special educational needs at home, but clearly it does not do that; it leaves it open to a local authority to override parents' wishes. I beg to move.

Photo of Lord Ashley of Stoke Lord Ashley of Stoke Labour

My Lords, I am interested in the amendment now before us, but I am also interested in the fate of this Bill. I have a tremendous respect for the political skills of the mover of the amendment. The noble Baroness is someone who is very experienced; indeed, she knows exactly what she is doing. Can the noble Baroness tell the house why there is such a vast number of amendments tabled in her name on the Marshalled List? I believe that she may be jeopardising the Bill. The noble Baroness has done a great deal of work on these issues. We all appreciate what she has done. She is a very eloquent person. However, if this Bill is lost, we should be in no doubt that we would be losing a non-controversial piece of legislation that would help disabled children. That would be scandalous; and the blame could well lie with the noble Baroness.

We discussed all these issues in Grand Committee. As she may well recognise, I spoke on the matter now before us at that stage. Therefore, all the skill and expertise that she brings to our debates, which we greatly respect--indeed, I admire her--is being misplaced with this amendment, and with others. I beg the noble Baroness to reconsider her approach. The loss of this Bill would be a grave loss to disabled children, and those with special educational needs, in Britain. I hope that the noble Baroness will take account of what I have said.

Photo of Baroness Blackstone Baroness Blackstone Minister of State (Education and Employment), Department for Education and Employment

My Lords, I am grateful for what my noble friend has said. Like him, I am surprised that this issue has been raised again. In Grand Committee, the noble Baroness seemed to accept that the amendment was unnecessary. She said:

"the answer of the noble Baroness is helpful".--[Official Report, 23/1/01; col. CWH 13.]

I should point out that I have in no way hardened my view. It is important for us to provide education that is appropriate to the individual needs of children.

The amendment is about the rights of parents to choose to educate their children outside the school system. The matter was raised in Grand Committee. I should like to reiterate what I said on that occasion: this is a right that all parents enjoy and it is protected by the Education Act 1996. It is provided for under Section 7 of the Act, not Section 5 as I said previously and for which I apologise. Provision is also made for this under the SEN framework. There is no conflict. Section 7 permits parents to educate their children outside school, and Section 316 of that Act preserves that position.

The current provisions are in place to ensure that all children receive an appropriate education. Our intention has always been to safeguard the interests of all children, so we do not believe that it is appropriate to change the existing provisions. Therefore, in the light of my assurances, and in an effort not to waste any further time, I hope that the noble Baroness will find it possible to withdraw her amendment.

Photo of Baroness Blatch Baroness Blatch Conservative 3:45 pm, 20th February 2001

My Lords, I am grateful to the noble Lord for the complimentary remarks that he made about me, but I am deeply disturbed by the implications of what he said. I believe that he is saying, "Abandon any sort of interest in this Bill at this stage because it is so good". I have been asked to withdraw the amendment because we discussed these matters in Grand Committee in the Moses Room. It has been suggested that I should now back off, not discuss my amendments any further because the subject matter has been discussed previously and let the Bill pass through the House quickly.

There is another year of this Parliament to run. The noble Lord, Lord Harris of Greenwich, is grimacing at that thought. If the Government wish to curtail this Parliament, it is a matter for them to decide the timing and, thereby, allow the Bill to go through. We should like to see it on the statute book; indeed, that applies to everyone who has given much time and effort to these proceedings.

I have two comments to make about the Moses Room. It is the most difficult place in this building to work, and it is extremely cold. I notice that the Clerk is also grimacing. When the heating problem was addressed on one of the four days in Committee, it was actually too hot: so it is either too hot or too cold. The acoustics are awful and the lighting is oppressive; indeed, I suffered my first real illness in something like four or five years after having worked for four days in the Moses Room.

Moreover--I have said this on so many occasions during discussions on amendments--it is not possible under the Moses Room procedure to bring any matter to a resolution, or to a conclusion. That can only take place when there is unanimity between the Minister and those noble Lords who are putting forward amendments. It is only when there is absolute agreement between us that we can conclude deliberations on a particular amendment. That happened on so few occasions. Even on this amendment, I said that I wanted to read the Minister's response. I have done so. I began my introduction to the amendment by saying that I had read what the noble Baroness said in Grand Committee. I have returned to certain points about which I wish to speak.

Finally, as regards the Moses Room, we were promised that our deliberations would not clash on any occasion with the business taking place in the Chamber. I know that an accommodation was made on the first day of our proceedings, but on each of the other days work was being carried out in the Chamber in which a number of us would have liked to have been involved. Therefore, the attendance for much of the time in the House was very patchy. We have a job to do; we are in opposition.

The Bill is not contentious. It is not a party-politically contentious Bill. However, there are very contentious areas within it--resourcing is one area. Other areas include: the emphasis on the particularly aggressive policy of mainstream education vis-a-vis special school education; the protection of special schools within the system; and whether children should be appropriately accommodated in both the maintained and non-maintained sector. Such issues will take time to resolve on the Floor of the House. I am sorry if I am being accused, as a individual, of prolonging the discussions on the Bill.

Photo of Lord Carter Lord Carter Chief Whip (House of Lords), HM Household, Lords Chief Whip (HM Household)

My Lords, with the leave of the House, perhaps I may point out to the noble Baroness that it was the decision of the Opposition to take the Committee proceedings on the Bill in the Moses Room. We discussed the programme. In order to get the business programme of the House through, I said that it would be necessary for two Bills out of the eight that we started in this House to go to the Moses Room for the Committee stage. I suggested that the Commonhold and Leasehold Bill should be one of them, and that is being discussed in the Moses Room today. It is a very complicated and technical Bill. I then asked the Opposition to choose the other Bill; and they chose the Bill now before us.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, as I said before--and I repeat--I do not believe that this is a party-politically contentious Bill. Perhaps I may point out to the noble Lord the Chief Whip that he is part of the usual channels, whereas I am not. It was agreed by the usual channels that this Bill should be considered in the Moses Room. I believe that it was the wrong Bill to be considered in the Moses Room: it is too complicated, too sensitive and too full of issues that need debate by the whole House. The inevitability of going into the Moses Room with such a Bill is that the Report stage will be prolonged.

Photo of Lord Carter Lord Carter Chief Whip (House of Lords), HM Household, Lords Chief Whip (HM Household)

My Lords, the noble Baroness may be right. However, her discussions should be with the Leader of the Opposition and her Chief Whip, not with the House.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, there would not have been a debate at all if I had not been accused of prolonging this stage of the Bill. I was urged either not to discuss my amendments or to withdraw them, which I do not intend to do--

Photo of Lord Harris of Greenwich Lord Harris of Greenwich Liberal Democrat

My Lords, the noble Baroness seemed to say that she very much deplored the fact that this Bill had gone to the Moses Room for consideration. I am sure that Black Rod will look into the various complaints that she made about the heating, and so on. However, as the Government Chief Whip pointed out, this was done only with the agreement of the usual channels, of which I am part. There was never any suggestion as far as I was aware that it was not accepted by the Opposition. Members of the Conservative Front Bench in this House have an obligation to their own Chief Whip, who agreed this matter, to support him when the matter comes before the House.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, I have that obligation and, indeed, I met it. We considered the Bill in the Moses Room. I discussed the Bill in the Moses Room without complaining except on one day when I was almost numb with cold and I complained about the temperature in the room. As I say, I met my obligation. However, in my view, this was the wrong Bill to be discussed in the Moses Room. That view is shared by many people who took part in the Grand Committee. They are not speaking out now but they spoke with me informally outside the Moses Room when we discussed the discomforts of that room.

As regards Amendment No. 2 that we are discussing, I am sure that we have broken all the rules of procedure on Report. However, I do not claim any culpability in that regard. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord MacKay of Ardbrecknish Lord MacKay of Ardbrecknish Crossbench

My Lords, in calling Amendment No. 3, I inform the House that if it is agreed to, I cannot call Amendments Nos. 4 to 7 due to pre-emption.

Photo of Baroness Blatch Baroness Blatch Conservative

moved Amendment No. 3:

Page 1, leave out lines 12 and 13.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, Amendment No. 3 heads a large group of amendments, which I believe are the most important amendments we shall discuss today. They are Amendments Nos. 3, 7, 13, 14 and consequential Amendments Nos. 22 and 23. The other amendments in the group are Amendments Nos. 5, 6, 8, 10, 11 and 12.

We discussed in Grand Committee amendments which sought to ensure that the mainstream school was in a position to provide the education necessary to meet the needs of the child and that the education to be provided was appropriate to that child's needs. However, having witnessed the result of the Division on Amendment No. 1, I now find that notion deeply disturbing. In rejecting those amendments the Minister accepted the concerns expressed by myself, by my noble friend Lord Baker, and by other noble Lords, but she sought comfort in the words of the statement issued upon the child. She also said that the code of practice to be produced by the Government after the Bill became law would cover the point.

Neither of those reasons for rejecting the amendments holds water. It seems that noble Lords on all sides of the House agree that if the child with special needs--I would say with or without a statement--is to be placed in a mainstream school, that mainstream school must be in a position to make proper and appropriate provision for that child. Most of that proper and appropriate provision will have to be in the form of extra, properly trained and qualified staff to deal with the particular learning difficulty of the child in question. For many children that provision would probably have to be provided on a one-to-one basis. I believe that that much is agreed between us.

We all know that the statement issued upon a child is by no means sufficiently specific to ensure that the means to provide the necessary and appropriate education for that child are in place at the maintained school before that child joins the school, or at least at the time the child joins the school. Therefore, recourse to the statement is by no means equivalent to specifying on the face of the Bill that the education must be appropriate and must be available at the school. That is all that the various amendments sought to do--to give protection to all concerned by ensuring that the needs of the child are met before enforcing a placement in a mainstream school.

The other reason the Minister gave--she virtually agreed with those of us who said that a statement was not enough--was to say that guidelines, or, as she put it, a code of practice, would at some time be issued. That is not good enough; it is not legislation. In the last analysis it is not binding. The only thing that is binding in law is that regard must be had to the measure, not that it must necessarily be followed. There is no good reason, therefore, for the amendments to be resisted. If we all agree that the child's needs should be met, and we all agree that the child should not be placed in a school where they cannot be met, we must have an amendment to that effect on the face of the Bill. I beg to move.

Photo of Lord Rix Lord Rix Crossbench

My Lords, I hope that no one in your Lordships' House will have any doubt about my concern to support the needs of the child. However, at the risk of alienating many of my friends now present I feel that I am unable to support these amendments which will not achieve that for which we are all striving. I fully support the desire to take into account the needs of the child in determining the most appropriate education, but I believe that that is already adequately taken care of by Schedule 27 to the 1996 Education Act and, indeed, by the statementing process.

For many years I, and other disability rights campaigners, including the Disability Rights Task Force and the Special Educational Consortium, have sought the removal of this condition from Section 316 of the 1996 Act on the ground that it has been used to exclude children from mainstream education who could have been well accommodated by such provision. This denies them rights afforded to other children and has been a wholly unacceptable state of affairs. I fear that the amendments we have before us today could be a retrograde step.

Furthermore, the 1989 Children Act requires the authorities to take into account the needs of the child. I believe the amendments at best superfluous and at worst to be adding to the danger of letting discrimination once more slip through the net.

Photo of Lord Northbourne Lord Northbourne Crossbench

My Lords, I say to the noble Lord, Lord Rix, that the conditions under Section 316 of the Education Act 1996 are that the child will receive,

"the special educational provision which his learning difficulty calls for"--

We hope to retain that provision with these amendments--

"the provision of efficient education for the children with whom he will be educated"--

That provision is in the Bill--and,

"the efficient use of resources".

I respectfully suggest to the noble Lord that it may well have been the efficient use of resources which enabled local authorities to dodge their responsibilities rather than the other matters to which he referred.

I speak to Amendments Nos. 5, 6, 11 and 12. In Grand Committee the noble Baroness said on several occasions that the Government believed that it was best, wherever possible, for SEN and disabled children to be educated in mainstream schools. She said,

"I stress that with the right support most children could be included in mainstream schools".--[Official Report, 30/1/01; col. CWH 158.]

I support that policy wholeheartedly with the proviso that the experience which the child has in a mainstream school is a positive experience and not a negative one. That is where the rub comes. If the child experiences failure and rejection when he is put into a mainstream school, that will be worse than his remaining in a special school.

For almost every special educational needs child some support will be needed if he or she is to succeed in a mainstream school and become successfully integrated into the community of that school. That support will comprise either additional facilities or additional trained staff. Can the noble Baroness tell the House what proportion of mainstream schools today have provision for special support for all disabilities? How many have not yet got any special provision at all? I believe that in the Bill the Government are putting the cart before the horse. In effect they are saying that the only way they can get schools to install the necessary provisions is to push a lot of children into them and hope that the schools' conscience will make them do something about the position. That is totally wrong. It seems to me that the right way to proceed is to ensure that the provision is in place and only then to move the children into that mainstream school.

The Government's policy will inevitably need to be implemented with flexibility to deal with individual children and individual schools. But we are putting these requirements into primary legislation. Primary legislation is not flexible. Once we have passed this legislation another Act of Parliament will be required if experience shows that the measure needs to be changed.

The main danger for a child who cannot cope in a mainstream school is that he will fall dreadfully behind, not understanding what is going on. That will lead to his rejecting education, truanting, exclusion and all that flows from that. Alternatively, he will fail to cope with the emotional and social problems of being plunged into a large community of children who are not disabled. That can again lead to withdrawal, truanting and exclusion. In either case the sequel will be disruptive behaviour or "switching off" followed by truancy, probably trouble with the police, drugs and unemployability. The cost to society of each child who fails in this way is enormous.

It is interesting to note that the money paid to schools to educate a child is of the order of £2,500 a year. The cost per year per child of a special day school is of the order of £11,000. With colleagues I had the privilege of visiting recently the Medway Secure Training Centre. The cost per child per year at this centre is £156,000.

The ideal solution could be for all mainstream schools to have special units to cope with all types of physical, mental and emotional disability. But most mainstream schools do not have them. To achieve that solution will take time and money. In the meantime, children will suffer. Children should not be used as guinea-pigs. Support systems should be in place before children with disabilities are sent to mainstream schools.

My amendments would give all concerned some flexibility with regard to what is best for the child. I recognise the fears of some organisations that disabled children are prevented by local authorities from going into mainstream schools by the loopholes in previous legislation. Surely there must be a better way of solving this problem than to push children into schools where the necessary support is not available for them.

Photo of Lord Baker of Dorking Lord Baker of Dorking Conservative 4:00 pm, 20th February 2001

My Lords, Amendment No. 8 stands in my name. The issues raised are common to all the amendments in the group. They provide different ways of achieving the objective. I believe that Amendment No. 8 provides the best way, but that may not win universal support.

The purpose of the amendments is to secure for a child with special educational needs the education appropriate to him. Clearly, it is not a party political matter. It is a non-controversial Bill. I hope that the Bill, suitably amended, will get to the statute book. However, I do not believe that it goes far enough. Successive governments have got into a muddle over special education. Some 20 or 30 years ago, in the definition of the department and in public debate special education referred to children who had clear physical disabilities, a clear mental handicap, who suffered from a hereditary genetic disease like cerebral palsy or Asperger's syndrome, who were visually impaired to the point of being blind, or were hard of hearing to the point of being deaf. That, broadly speaking, was what special education referred to some 30 years ago.

Then there were children who were slow learners; they did not get on well at school. Only in the past 30 years has one been able to define the problems from which those children suffer. When I was Secretary of State the department virtually did not recognise dyslexia. One of my officials referred to it as a fad. That was the attitude. The effect of autism on children's learning abilities is now clearly recorded and defined and has been measured. The behavioural and emotional problems of children have been analysed and more clearly determined and leads them to be clearly defined as children with special educational needs. I am certain that that group of children will benefit from going to mainstream schools. They will not have the sense of exclusion sometimes felt by children who go to special schools.

Those children represent 20 per cent of the school population. About 3 per cent of children have acute educational needs. The remainder are those whom I have described. I believe that with proper assistance and proper teaching those children can be accommodated appropriately within a mainstream school. I do not object to that. The noble Lord, Lord Rix, has been associated with that cause over a number of years.

I am concerned about the children who have more complex difficulties, who now find it difficult to get into special schools. A number of special schools have closed. The number has been roughly halved in the past 20 years. Despite what the Minister may say when winding up, it is well known that the department has not been too favourably disposed to special schools. It was not particularly favourably disposed to special schools in my time.

We must ensure that if children are to be thrust into mainstream schools, they have appropriate provision for the complexity of the needs for their education. That is why those of us who are associated with special schools do not believe that the Bill as drafted is adequate. We seek to ensure an entitlement for the child: the LEA has to state specifically the educational regime that the child will receive.

The noble Lord, Lord Rix, said that he did not support that aim because he believes that the statementing system works and provides that. I refer him to a document which has been sent to all Peers. It is not a group with whom I am associated. The document is headed Action on Entitlement. It cites the case of a boy called Jonathan who was born with cerebral palsy and therefore is subject to epilepsy. He was statemented. His statement said that he must have speech therapy but did not state how much. So he went to a mainstream school with a special unit. His parents contacted the speech therapist to inquire how much speech therapy Jonathan would receive. The speech therapist explained that she was used mainly in a consultative capacity, visiting the school once a term. His parents were told that Jonathan would probably get 20 minutes therapy a term. Jonathan's need for speech therapy has been identified, but there is no obligation on the local authority to provide it.

What happened? Jonathan's parents appealed to a special needs tribunal which ordered the LEA to rewrite the statement to specify weekly speech therapy. It also ordered the LEA to name a different school in Part 4--one where the required level of speech therapy could be arranged and co-ordinated to meet his complex learning needs. What a procedure to go through. Why is it not reasonable in such a case for the LEA to state, "This boy has cerebral palsy. He needs speech therapy. We shall provide it on the basis of so many hours per week, so many lessons during the term"? There is no such obligation in the Bill. It is an enormous lacuna.

Noble Lords may know that I am the chairman of the Royal London Society for the Blind which maintains one of the leading schools for the blind in the country. I asked some of the teachers in that school to tell me the school's teaching methods and what it provides. It is a charitable school. It is independent, but virtually all the fees are paid by the LEA, the state. It is a fantasy to believe that it is a sort of Eton world; the fees are infinitely higher than at Eton and parents cannot afford them.

I shall read out a list of the provision made at Dorton House and then invite the Minister to identify a school anywhere in the country that can provide similar services for visually impaired children. She will not be able to do so because the information does not lie in her department. I have asked Questions about the issue, and the department is not aware of all the answers. The department is simply saying that the statement is enough and it is up to the LEAs. The Minister is abandoning her responsibility if she is not aware of how the issues are working in practice.

Dorton House school for the blind provides specialist teachers for the visually impaired. It offers small group teaching in classes of six, with braillists. It provides access to the relevant technology and full access to the whole national curriculum, which is geared and presented for visually impaired students. I asked specifically this morning how many hours a week were spent on the four main subjects in the national curriculum--English, maths, science and IT. I was told that there was four hours of teaching per week on each. That means a total of 16 hours of teaching on the basic national curriculum subjects. Which LEA schools can do that?

Dorton House also provides specialist equipment for sport, music and technology, which are critically important to blind children, including appropriately adapted industry standard equipment and an outstanding music technology suite, together with specialist support for individual instrumental tuition. There are also trained mobility staff for all students. Blind children have to be guided around the school, sometimes by other children who have some sight. Some have to be shown how to get from classroom to classroom or to the canteen.

Boarding students receive a 24-hour curriculum and day pupils receive life skills for independent living. A blind child cannot learn how to use a knife and fork by watching someone else, as the rest of us learn. They cannot learn to tie up their shoes by watching how it is done, as we learn. They have to be taught. That requires patience and skills.

Then there are resources. Dorton House provides braillers, Mountbattens, which are an old form of braillers, Eureka and braillites, which allow a teacher who is not visually impaired to speak and the children to record the notes on braille as they go along. There is counselling for those students who are experiencing loss of sight.

All pupils at Dorton House have individual education plans that are reviewed termly. What happened to the individual education plan for Jonathan, the boy with cerebral palsy? It did not exist. Speech and language therapy are available, as well as physiotherapy, occupational therapy and other therapies, including dance and music.

Those are the services provided by special schools. There are other special schools that deal with the problems of the visually impaired and the blind. There are several special schools for the deaf, which also have to provide and create special learning environments.

If there is a presumption that a child should go to a mainstream school, there should be an obligation on the LEA to set out specifically how that child will be educated. There is nothing specific in the current legislation or codes of practice. Ministers know that. They are reluctant to accept the amendments because the resource implications of the Bill are enormous. The Minister has said on several occasions that the Government are providing more money for special education, but every child is entitled to the best that society can provide. That will not be guaranteed without amendments along the lines proposed.

We may not come to a conclusion on the amendments today, but I hope that there will be sufficient agreement across the House to insist that the Government go further to give the parents and the child an entitlement to know the exact educational provision that will be made to cater for the child's disability.

Photo of Baroness Sharp of Guildford Baroness Sharp of Guildford Liberal Democrat 4:15 pm, 20th February 2001

My Lords, I have some difficulty with the amendments. I hear what the noble Lord, Lord Rix, said and I am well aware of the extent to which the mealy-mouthed weasel words, "appropriate to their needs" have been used to exclude children from mainstream education. There are three reasons why the Bill would be improved if some move were made in the direction of taking account of the needs or best interests of the child.

First, the words, "the best interests of the child" are used in the Children Act. Those interests should be paramount. Secondly, I am worried that there may be conflict between the two criteria on the face of the Bill: the wishes of the child and what is judged to be in the interests of the efficient education of other children. How will such conflict be resolved? Should we not be looking to what is in the interests of the child?

Thirdly, I echo the words of the noble Lord, Lord Baker. We pressed the Minister in Grand Committee about resources. It is clear that a lot of resources will be provided for capital improvement, particularly in relation to the disability section of the Bill, which we shall come to later, but I am not convinced that there are the necessary resources in the system to meet the needs that are being imposed on the ordinary school system.

I recognise that we are taking on a progressive agenda and putting in resources, but without adequate resources in the ordinary school system to support provision for special needs many children will be short-changed. There are too many examples of the statement of special educational needs not specifying sufficiently clearly what quantity shall be provided. We have had some reassurances that the new code of practice will provide for quantitative specification, but I want clear assurances about the provision of resources and about making some allowance for the child. I had hoped that others would table amendments on the wishes of the child. I may well table one on Third Reading. The wishes of the child need to be taken into account if they are ascertainable.

I am currently perplexed by the amendments. I have some sympathy and I shall listen very hard to the Minister.

Photo of Lord Renton Lord Renton Conservative

My Lords, this is the most important group of amendments that we have to consider on Report. Not all of them can be accepted, but I hope that the Minister will take very seriously the anxieties that are felt not only by a few of us in your Lordships' House but by many people outside about the Government stressing and prioritising the education of children with learning difficulties in mainstream schools. Of course, some are suitable for that, but we have to consider the needs of the child above all else.

I listened with interest to the noble Lord, Lord Northbourne, and my noble friend Lord Baker of Dorking. As this is the first time that I have intervened in the proceedings on this Bill, perhaps I may declare that for nearly 30 years I have had reason to be closely involved with this matter. I have a daughter, now in her 40s, who has very severe learning difficulties and an incurable physical condition. When I retired from the Bar 26 years ago I became involved with Mencap. I was treasurer for two years, chairman for four years and president for six years. I am glad to say that the best thing I ever did for Mencap when I was chairman was to persuade the noble Lord, Lord Rix, to become the secretary-general. That was very valuable. Perhaps I may say how disappointed I was when I heard him speak very briefly. He is entitled to change and improve his mind, if I dare to say so.

My association with Mencap and my general interest in mentally handicapped people caused me to visit not only some special schools but also several mainstream schools, especially in my Huntingdonshire constituency where pupils with learning difficulties were having a hard time. That worried the parents who asked me to consider the matter.

Having children with learning difficulties in mainstream schools causes serious problems. The first is that the children become more conscious of their mental handicap which gives them an inferiority complex. Alas, sometimes they are bullied and often they are treated with casual contempt by normal pupils and even by teachers. There is a gentleman in the north of England who has a very great reputation. He has handicapped children of his own. He has written a memorandum dealing with this matter in which he says,

"Integration into mainstream schools often means disruption and delays in the classrooms detrimental to the normal pupils"-- perhaps I may repeat the words--

"detrimental to the normal pupils, while placing an impossible workload on the teachers".

Therefore, will the noble Baroness change her mind and persuade her colleagues to do likewise over the emphasis in Clause 1 on mainstream schools. It must be done if we are to achieve justice and if we are to do our best for those with learning difficulties.

How do we achieve that? Various ways have been suggested. But surely, above all else, when considering the drafting of Clause 1 we should place an obligation on all concerned to consider the special needs of children with learning difficulties. If that were written into Clause 1 it would do the Government no harm. It would not impair their policy, but it would mean that they were meeting the special needs of children with learning difficulties.

Many of the amendments are acceptable, but from the drafting point of view I hope that Amendment No.10 might have appeal because it is the simplest and most direct. It states,

"leave out from ("a") to end of line 16 and insert ("school which is compatible with - (aa) the needs of the child,").

That has been left out of the Bill. The needs of the child are paramount. If we approved that amendment, subsection (3) would read,

"If a statement is maintained under section 324 for the child, he must be educated in a school which is compatible with the needs of the child, the wishes of his parent or the provision of [special] education for other children".

I would have preferred the word "and"--that can be put right--to "or". Surely, they are the three dominant factors which we should put into the Bill. One could say much more about this, but I hope that I have made the vital point.

Photo of Lord Lucas Lord Lucas Conservative

My Lords, I support the noble Lord, Lord Renton, and other noble friends who have spoken. I understand what the noble Lord, Lord Rix, said when he referred to the old practice of local authorities using the words in the 1996 Act and not even thinking about a child with a statement. The child is bunged into a special school because that is easier for the system and one does not have to think about the problems of providing a place in a mainstream school.

However, under the Bill we are in danger of going too far in the other direction. Let us imagine a blind child in a mainstream school which cannot provide for that child. The child is quiet and docile and presents no problem, so the local authority cannot suggest a specialist school under Clause 1(3)(b). The parents may be perfectly content with a quiet education in which the child learns how to get on in the real world but receives no particular help to cope with blindness. It may be that the parents are prejudiced or have some problem. The child is stuck in that situation. That also applies to a child who has dyslexia and is bullied unmercifully because of it. If it is the wish of the parents, the child stays in a mainstream school, and the local authority can do nothing. It has no power to name a special school even though that would be very much the best thing in either of the two cases I have mentioned.

We have completely taken away the power of the local authority to do the best for the child. As far as I can see, the local authority has no ability to improve matters. It is true that we are dealing with the problem of malevolent local authorities, but we are putting the whole burden on the child. We are going to dump children in mainstream schools in extremely unsuitable circumstances and offer them no way out. That is not acceptable. Although the previous system was bad, it was a great deal better than the one we are about to adopt if this Bill goes through as it is.

Photo of Baroness Blackstone Baroness Blackstone Minister of State (Education and Employment), Department for Education and Employment

My Lords, we have had a long debate about this group of amendments concerning the needs and interests of individual children. At the very outset perhaps I might say how grateful I am for the support of the noble Lord, Lord Rix, in resisting these amendments, as I shall. I believe that he was right in the short and pointed way in which he made clear the position of those who are knowledgeable about special educational needs. I say to the noble Lord, Lord Renton, that I entirely accept that there are anxious people and I take those anxieties very seriously. I was, however, very shocked by one comment that he made. He claimed that inclusion has no positive impact. That is simply not true. I do not believe that that view is held by anyone who spoke at the Committee stage of this Bill or who has spoken so far today. There is excellent independent research, not carried out by the Government but by Barnardo's, which concluded that inclusion brings both social and educational benefits to pupils with and without special educational needs.

Photo of Baroness Blackstone Baroness Blackstone Minister of State (Education and Employment), Department for Education and Employment 4:30 pm, 20th February 2001

No, my Lords, this is Report stage and we should get on. Perhaps the noble Lord will allow me to finish. I reiterate that I entirely accept that there are some children whose special educational needs are such that they need to be educated in special schools. I shall say more about that later.

I wish to deal first with the amendments focusing on children who have special educational needs but who do not have a statement, and conclude by considering the amendments which focus on children with statements. Amendment No.3 seeks to remove the requirement that a child without a statement of special educational needs should be placed in a mainstream school in all but a few exceptional circumstances. Amendment No. 7 seeks to insert a parental opt-out in the very section that Amendment No. 3 seeks to remove. Amendments Nos. 5 and 6, proposed by the noble Lord, Lord Northbourne, seek to protect the interests of the individual child. I shall return to that aspect in a moment. Perhaps it would be helpful if I reminded the noble Baroness, Lady Blatch, that she is on record as saying, back in 1992 when she discussed children without statements, that the then government were firmly committed to,

"the presumption that placements should be made in mainstream schools if at all possible".--[Official Report, 11/6/92; col. 1407.]

That is exactly what the Government want to do. It puzzles me that she now wants to relax those arrangements. The Government believe that that would be a retrograde step.

I say to the noble Lord, Lord Northbourne, and to others who have spoken in this debate, that of course we want any child in a mainstream school to have a positive experience. I cannot give precise figures about how many mainstream schools could at this point provide the specialist help and resources needed to enable more children to come into the mainstream system. It would be ridiculous to try to do that in advance of the reform. No mainstream school can make arrangements without knowing about the individual needs of a particular child who has SEN. I was asked a totally unanswerable question. Moreover, I do not think that it would be possible for a local authority to make provision in mainstream schools in advance of changes that might be made after the Bill's eventual enactment.

I state categorically to the noble Lord that there is no intention for children to become guinea pigs under the legislation; far from it. I say to the noble Baroness, Lady Sharp, that we certainly do not want to short-change children. Of course, if we were to agree to Amendment No. 3 there would be no provision within Section 316 to ensure that the majority of children who have SEN but who do not have a statement are educated within the mainstream system.

We want an inclusive education service to offer excellence and choice and we believe that parents' wishes should be listened to. However, we also firmly believe that a mainstream place is right and in the best interests of the vast majority of children who have SEN. As the noble Lord, Lord Baker, said, that may involve up to 20 per cent of children who do not have a statement.

We acknowledge that there will be a small minority of cases in which a child has SEN but does not have a statement for whom a special school is more appropriate. We have previously acknowledged that. Those "exceptional circumstances" have been set out in the Bill. The exceptional circumstances provide sufficient flexibility to ensure that a child who does not have a statement but who needs to go to a special school can do so. At a time when we are seeking to strengthen the right to a mainstream place for children who have statements, it would be bizarre to unduly limit access to the mainstream in relation to children who do not have a statement. In the light of that, I hope that the amendments will be withdrawn.

The remaining amendments--Amendments Nos. 8, 10 to 14, 22 and 23--seek to protect the interests of children who have statements. In effect, they reinstate provisions that are equivalent to the first caveat of the existing Section 316. As I said when discussing earlier amendments, the Government do not intend to do that.

I was interested in the history of SEN and special schools and the account of how they are treated given by the noble Lord, Lord Baker. I must say, however, that his speech was more appropriate for a Second Reading debate and was not absolutely confined to the amendments. Never mind: a great deal of his historical comments were absolutely right. I cannot go back as far as he did, but I can state that during the past five years the number of places in special schools has been static. About 1.2 per cent of all children are provided for, which amounts to approximately 97,000 places. Under this Government, there has not been an attack on special schools. I said throughout the Bill's Committee stage that the Government greatly respect the important work that special schools do.

We thought very carefully about the nature of the changes that we wanted to make to Section 316. We have always balanced the promotion of inclusion with the need to ensure that the education of all children is safeguarded. We did not drop the first caveat in order to downgrade or disregard the interests of individual children with statements. It was dropped--I repeat myself again--because we had clear evidence that it had been used inappropriately to block inclusion and that parents were ill placed to argue against such a judgment. Equally, we firmly believe that there are sufficient safeguards elsewhere in law to ensure that the needs of both the individual child and all pupils are protected. Of course, many children, such as those who are blind or deaf, to whom the noble Lord, Lord Baker, referred, will need the support of a special school.

In our approach we have the support of the Special Educational Consortium. I say to the noble Lord, Lord Renton, that he is a little out of touch with recent thinking on those matters. I am sure that his successor at Mencap, my noble friend Lord Rix, will confirm that. The SEC's position is that it has publicly welcomed our removal of the caveat relating to appropriate provision for the child because in practice that has often led to LEAs putting unnecessary barriers in the way of the need to provide a child with a mainstream place. The consortium supports increased access to appropriate mainstream placements that the removal of that caveat represents.

The whole point of identifying and assessing a child who needs a statement, and making a statement, is to ensure that the child receives the special educational provision that he needs. Under Schedule 27 to the 1996 Act, an authority is not required to comply with a parental preference for a maintained school if it is,

"unsuitable to the child's age, ability or aptitude or to his special educational needs, or the attendance at the school would be incompatible with the provision of efficient education for children with whom he would be educated, or the efficient use of resources".

That ensures that the individual needs of the child are taken into account when deciding whether to name a parent's choice of maintained school in their child's statement.

When a non-maintained school is requested, Section 9, which also applies to maintained schools, sets the general principle that,

"pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training".

That will, we believe, enable a local authority to safeguard a child's interests if it considered that the provision suggested by a child's parents was incompatible with that child's efficient education or training.

When parents believe that an authority has named a school in a statement that cannot meet the needs of their child, they have the right of redress to the Special Educational Needs and Disability Rights Tribunal. Members of the tribunal consider each case on its merits and take full account of the special educational needs of children. That affords an additional level of protection. I hope that the informal arrangements contained in Clause 3 for resolving disputes will also be helpful in this context.

I say to the noble Lord, Lord Northbourne, that Section 317 means that governing bodies of maintained schools must use their best endeavours to secure SEN provision for children with learning difficulties. I say to the noble Lord, Lord Baker, and the noble Baroness, Lady Sharp--I hope that this will provide her with the assurance she sought--that we shall enhance the guidance in the final version of the revised SEN code of practice. We will make it absolutely clear that the statement should: describe clearly all of the child's SEN needs in full; set out the main objectives that the SEN provision aims to meet; specify clearly and in detail the provision required to meet each of the child's needs; describe the arrangements for setting shorter-term objectives for the child; describe any special arrangements for the annual review of the statement; stress the importance of monitoring the child and evaluating his or her progress during the year; and emphasise the importance of the LEA monitoring the child's progress towards identified outcomes with a school.

I hope that that provides reassurance. Your Lordships will recall that I signalled during Committee stage our intention to ask HM Chief Inspector of Schools to monitor the new inclusion framework. The Secretary of State has now written to him and, once confirmed, this additional accountability will help to prevent any potential abuses and ensure that the needs of the child are safeguarded.

We do not therefore believe that it would be right to reinsert provisions that might be seen as equivalent to the old first caveat. I do understand that these concerns have been raised solely by the wish to ensure that the interests of all children are safeguarded. I really want to try to be helpful. I am happy to give a commitment today that the statutory guidance which will support the new inclusion arrangements will underline the need to ensure that the interests of all children are protected--and I mean all--and will clearly set out where those safeguards are, in law, which protect the interests of individual children. I hope that in the light of that rather long response to the debate it will be possible for these amendments to be withdrawn--

Photo of Lord Baker of Dorking Lord Baker of Dorking Conservative

My Lords, before the noble Baroness sits down, will she clarify some of the points that she has just made? She said she would go quite a long way towards meeting the objectives of these amendments in the code of guidance. I also think she said that when a statement is made on the needs of a child, not only the needs but the actual provision required will be spelt out. If that is the case, then I have to say that she could surely accept these amendments. But it does not go quite far enough. We are seeking through these amendments to give the child an entitlement to know that when his or her special educational needs are identified and the child has been sent to a mainstream school, it is up to the LEA to say to the parents, "This is how we are going to cope with your blindness, your deafness, your epilepsy and so on."

I do not think the noble Baroness is prepared to go quite as far as that, but that is what is needed. Education authorities should have an obligation upon them to say, for example, that there should be an educational plan agreed for each child, for each term. How many mainstream schools do that for children with special educational needs? I bet there are very few; but special schools do that. I believe that the noble Baroness has to go a little further. Maybe this is not the point to pursue this and perhaps it could be done at Third Reading. Perhaps by Third Reading the noble Baroness could circulate the draft code and draft guidance so that we can all understand what is meant. I realise that it cannot be amended, but we will at least have a clear understanding of what is in her mind. The noble Baroness knows perfectly well that many local education authorities do not handle special educational needs or disabilities very well. That is not good enough. These children should have the best education that our society can provide.

Photo of Lord Renton Lord Renton Conservative

My Lords, also before the noble Baroness sits down--

Photo of Baroness Blackstone Baroness Blackstone Minister of State (Education and Employment), Department for Education and Employment

My Lords, this is Report stage. We have just had a long speech from the noble Lord, Lord Baker, and I must remind the House--I hate to do this--that at Report it is reasonable to ask the Minister, before she sits down, for some clarification. I am willing to give a short answer for clarification, although the question was asked at great length by the noble Lord, Lord Baker.

We are clear that LEAs have to specify the provision that each child needs according to their assessment of the needs when the child has a statement.

Photo of Lord Renton Lord Renton Conservative

My Lords, before the noble Baroness sits down, and very briefly, she accused me of being out of touch, but I do not think that suggesting the insertion of needs puts me out of touch.

Photo of Lord Lucas Lord Lucas Conservative

My Lords, before the noble Baroness sits down, she twice used the phrase that there are sufficient safeguards elsewhere in law. To the extent that those safeguards were not particularised in her later remarks, could she please write to tell me what she thinks they are?

Photo of Lord Northbourne Lord Northbourne Crossbench

My Lords, would the noble Baroness consider talking to some of us betweeen this stage of the Bill and Third Reading about some kind of compromise? It seems to be extraordinarily clumsy, if I may say so, to take out the words "appropriate provision for the child", which is going to expose the child to not getting the appropriate provision simply because some LEAs have been misusing their powers.

Photo of Baroness Blatch Baroness Blatch Conservative 4:45 pm, 20th February 2001

My noble friend did in fact ask the noble Baroness a direct question and I am not tall enough to recognise any signals made by her. It would be helpful if the whole House could hear the Minister's reply.

Photo of Baroness Blackstone Baroness Blackstone Minister of State (Education and Employment), Department for Education and Employment

My Lords, I am happy to write to the noble Lord on the basis that he has requested.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, is there an equal nod to the request for a meeting between now and the next stage of the Bill?

Photo of Baroness Blackstone Baroness Blackstone Minister of State (Education and Employment), Department for Education and Employment

My Lords, we have had a great many meetings on this Bill already and I have to consider whether it is reasonable to use the resources of the department for yet more meetings. Of course I will take that away and consider it, but I cannot make an absolute commitment since I have set out very clearly the position to the noble Lord, Lord Northbourne, and others who have taken part in the discussion on this group.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, I am sorry: that was a churlish reply. I do not believe that I ever refused Members of this House meetings between stages of a Bill. The noble Lord, Lord Northbourne, suggested that it would be possible to reach a compromise between what is a very genuine desire on the part of noble Lords who have pressed their amendments and the noble Baroness, who has said that the resolution of these points will be found elsewhere. As my noble friend Lord Lucas said, it would be helpful for us to know exactly where.

I do not know from what the noble Baroness was reading. If it was from the guidance or the code of practice it would be helpful--as it is available to the Minister and the department--for it to be made available to the rest of us who are involved in discussing this Bill. It would also be helpful to know whether it was the final draft, because I understand that specifying the detail is qualified by further words "when appropriate". It would be helpful to have some clarification on who decides when something is appropriate. It would be helpful if the noble Baroness could give us some idea as to whether what was being read from was definitive. If it is, can we all see it? If it is not definitive, may we know whether any suggested changes are being considered?

Several times this afternoon the noble Baroness has prayed in aid the Special Educational Consortium. I have had meetings with it, as have other Members of the House, and my understanding is that it would like to see the best interests of the child met. I do not remember it having objections to some of these amendments, certainly those which refer quite specifically to the best interests of the child. I know that it would wish to see additional numbers of children--I agree with the noble Baroness over that--into mainstream schools, but it would add the caveat that we all have, that it would be effective only if it was done with the particular support that a child would need.

The noble Baroness prayed in aid other documents, either guidance or a further code of practice. These are not binding in law, other than that we are required to have regard to them. Therefore there is no obligation in law for LEAs or anybody to do more than have regard to the guidance. The suggestion has been made that something should go on to the face of the Bill, especially as the noble Baroness has actually agreed with the sentiments of these amendments. It would be a very easy step, as my noble friend Lord Baker of Dorking said, to give young people an entitlement--that is what it would be converted to--rather than for it to be in a code of practice and/or guidance, to which regard only "has to be had".

The noble Baroness quoted me from, I believe, a 1992 Hansard. I hold up my hands and plead guilty. I said that the Government at that time had a presumption in favour of mainstream where mainstream can cope and it is in the interests and the educational needs of the child. The noble Baroness did not go on to qualify that, but that has always been my position both as a Minister and ever since. I have to say that the words on the face of this Bill are in conflict with many of the things that the noble Baroness has been saying. There is a rigidity of provision for children who have special educational needs, but who do not have a statement. There is a rigidity in the Bill. The wording in the Bill is that they "must" be educated in mainstream schools. We shall discuss that later.

The Minister said that no maintained school can make arrangements without knowing what the statement contains, but my noble friend Lord Baker of Dorking, and many of us in Committee, said that statements are inadequate. Because the Government are not prepared to put something on the face of the Bill that would guarantee specification of a statement, they will continue to be inadequate because nothing can be done about that in law. Therefore, we would like to see that entitlement written into the Bill. My noble friend gave a good example of a young person with cerebral palsy. I believe that a young person who had suffered from birth with cerebral palsy would require a little more than speech therapy, even if the amount of speech therapy is not quantified.

The noble Baroness, Lady Sharp, referred to her confusion in relation to the amendments. I am not that confused about the amendments collectively, as each amendment is discrete in itself, except for Amendments No. 22 and 23 which are consequential. However, the noble Baroness, Lady Sharp, rightly referred to tension being created where a placement in a mainstream school may be deemed appropriate as that may adversely affect the education of other children. That is provided for in the Bill.

If the placement of a child with special needs into any school, whether non-maintained or maintained, has an adverse effect on other children in the school, it will not be in the best interest of that child or the other children in the school. I see that being resolved by simply saying that that is not the best placement and certainly not in the best interests of the child.

Amendment No. 3 is unequivocal. Clause 1 states that a child with special educational needs, but without a statement must--I repeat "must"--be educated in a mainstream school. There is no flexibility. If there is a caveat somewhere else in legislation, or somewhere else in the Bill, this is otiose and does not need to be here. The Government either mean "must" or they do not. The Minister has given a long and complicated response to the amendments for which we are grateful, and because this is a complicated group of amendments I would like to read what she has said, although we shall certainly return to the issue on report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Blatch Baroness Blatch Conservative

moved Amendment No. 4:

Page 1, line 13, leave out ("educated") and insert ("registered").

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, the response of the Minister in Committee makes interesting reading. I argued that where the clause says that the child must be educated in a mainstream school, it would preserve current flexibility in provision for a child with special education needs if the word "educated" were replaced by "registered".

We had a semantic debate on that, and on re-reading what the Minister said I am not convinced. It would mean that a child with special educational needs could be registered in a mainstream school but that, according to the child's needs, some of the education given to that child could take place elsewhere, possibly at a special school, where provision for some particular aspect of that child's education could be better met. My noble friend Lord Lucas described the situation as the mainstream school subcontracting part of the education to a special school or to some other institution.

In reply the Minister warmly agreed that indeed such placements can and do occur. She used the term "dual placements". Indeed, she argued the case well for the amendment. Perhaps I may quote the words from the report:

"There are many examples up and down the country of a child who is registered at one school spending part of his or her time at another, often a special school. It has been very effective in helping both pupils and schools. Therefore, where it is appropriate and in the child's best interests, we certainly agree that dual placements should be used".

The noble Baroness herself used the word "registered" and that is the appropriate word. Yet, as the Bill is worded, that becomes illegal, not just with the words in Clause 1(2), but in further references to

"must be educated in a mainstream school", which occur elsewhere in the Bill.

Given the Minister's acceptance that what I argued for, and what she argued for in agreement with me, is current good practice and should continue, does she now accept that the word "educated" should be changed to "registered"? I beg to move.

Photo of Baroness Blackstone Baroness Blackstone Minister of State (Education and Employment), Department for Education and Employment

My Lords, the amendment seeks to clarify the role of dual placements in supporting children with SEN. The noble Baroness, Lady Blatch, believes that it would be more appropriate for pupils with SEN who do not have a statement to be "registered" rather than "educated" at a mainstream school. She argues that where a child who does not have a statement is being supported by a dual placement, he or she is not being wholly educated in a mainstream school.

I wrote to the noble Lord, Lord Lucas, about dual placements in response to the debate we had on this subject during the Grand Committee and the letter was copied to those present at the first day of the Grand Committee. I confirmed then, and I shall do so again today, that dual placements--namely, where a child is registered at more than one school--are permitted under the Education (Pupils Registration) Regulations 1995 (provided for by Section 434 of the Education Act 1996). This Bill in no way inhibits the appropriate use of dual placements. Indeed, we think they are helpful and important.

We firmly believe that a mainstream place is right and in the interests of the vast majority of children with SEN who do not have statements. The exceptional circumstances set out on the face of the Bill provide sufficient flexibility to ensure that where a mainstream place is not right, a child without a statement can attend a special school. Children who do not have statements can be supported by dual placements, but we believe that they should receive the majority of their education at the mainstream school. Section 316(2) and the use of the word "educated" ensures that.

This amendment would allow a child to be placed on the register of one school but taught at a totally different school. The concern is that that could be abused. I hope noble Lords will agree that it would be far from satisfactory for parents to gain a place for their child at a mainstream school only to find out that the school did not intend to educate the child for the majority of the time, but proposed to send the child elsewhere. Where appropriate, inclusion should be real and not a sham. Having heard my assurances, I hope that dual registration can take place and that the amendment can be withdrawn.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, the Bill is deeply frustrating. I am left with the same problem that I had in the Moses Room. The Bill says that a child without a statement "must" be educated--not "registered"--in a mainstream school. Part of that provision may not be at a mainstream school, but at home or in a specialist school which is not maintained or it may be anywhere. On the one hand, the Minister says that that is all possible, and yet the Bill does not make it possible.

If the Minister is saying that somewhere else in statute that is made possible, this is otiose. On the point that children must be educated in a mainstream school, and therefore not educated anywhere else, the word "registered" gets us over the problem. They can be registered in a mainstream school, or registered in an independent school, but part of their education can be met somewhere else.

As I say, the tone is different and the thrust of what the Minister said in response to these amendments is different from her response in the Moses Room. In the Moses Room the Minister tried to be all things to all people. The truth is that there is now an aggressive move to mainstream education. On so many occasions the Minister has talked about abuse of the system, where an LEA may want to put someone in a specialist school, either partly or wholly, but that would be against the wishes of the department. One cannot have it both ways. One cannot have on the face of the Bill that a child without a statement must be educated in a mainstream school and then allow for the child in part to be educated at a non-maintained school. It simply does not add up. Therefore, unless the Minister is able to be more accommodating in her response to the amendment, I wish to seek the opinion of the House.

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 85; Not-Contents, 164.

Division number 2 Adults Abused in Childhood — Special Educational Needs and Disability Bill [H.L.]

Aye: 83 Members of the House of Lords

No: 162 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

[Amendments Nos. 5 to 8 not moved.]

Photo of Baroness Blatch Baroness Blatch Conservative 5:11 pm, 20th February 2001

moved Amendment No. 9:

Page 1, line 15, leave out ("must") and insert ("will normally").

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, in subsection (3) of Clause 1, we turn our attention to the child with special needs. However, unlike the child referred to in subsection (2), the child in this subsection is one with a statement.

Those noble Lords with detailed knowledge of a child with a statement--indeed, those noble Lords who have had relatives with such learning difficulties--will know that if parents have gone so far as to secure a statement for a child, then that child's disability or learning difficulty will be pretty severe. Indeed, I would argue that today many children with special needs should hold a statement, but for whatever reason a local authority may drag its feet in the assessment procedure to establish and issue the statement. Thus most children who have achieved a statement are in great need of specialist help.

In Committee, I tabled amendments to this subsection but they were not voted on because the procedure did not allow for it. Along with another amendment to the clause to which I shall speak later, I wish to assert that adequate provision for a child with severe difficulties has to be made available in a mainstream school before parents can be obliged to place their child in such a mainstream school.

I hope that the noble Lord will be able to look more favourably on the aim of Amendment No. 9 and that he will be able to be more accommodating at this stage of our deliberations. I beg to move.

Photo of Lord Davies of Oldham Lord Davies of Oldham Lords in Waiting (Whips)

My Lords, with this amendment the noble Baroness, with her customary subtlety, seeks to restrict access to mainstream schools for children with statements.

I find this rather strange, because the argument--over which we have spent a considerable amount of time this afternoon--turns on the fact that the Government seek to ensure that the potential social, moral and educational benefits of inclusion are realised by this Bill. I believe that all sides of the House recognise that inclusion has its benefits. That is why young people who are able to attend a mainstream school, provided that it can provide adequate accommodation for them, will benefit from the aspect of inclusion which underpins the entire Bill.

The Government's commitment to inclusion has been strong and constant. Clause 1 of the Bill delivers our commitment to strengthen the right to a mainstream place for children with special educational needs. This is in line with the recommendation of the Disability Rights Task Force. The Bill provides that, where a child's parents want a mainstream place and where this would not prejudice the efficient education of other children, that child should be educated in a mainstream school.

We believe, and the majority of those who responded to the Bill's consultation agree--indeed, we have heard evidence in earlier debates this afternoon to that effect--that we have struck the right balance between, on the one hand, delivering greater inclusion, with all the benefits that that can bring, and, on the other hand, protecting the interests of other children. We are not restricting the use of dual placements or external support. We have also underlined that there is a continuing and vital role for specialist provision. Our intention is to safeguard the needs of all children and we believe that this clause delivers that aim.

What the amendment before the House would do would be to create further ambiguity in the system. We are trying to introduce transparency and clarity. For that reason, I ask the noble Baroness to consider withdrawing her amendment.

Photo of Lord Baker of Dorking Lord Baker of Dorking Conservative

My Lords, in reply to the last debate, the Minister's colleague stated that plans were in place to modify the code of practice in respect of statemented children. She said that not only should the needs of a statemented child be set out but also the provisions needed for such a child. Perhaps I may ask the Minister to detail in a letter to me how detailed such provision is to be. Will it be like the case of Jonathan, where his need for speech therapy was not met, or will the code specify that such a child needs so many hours per week or per month of speech therapy?

I do not expect the Minister to be able to answer off the cuff, but if he could reply to me before Third Reading, I should be grateful.

Photo of Lord Davies of Oldham Lord Davies of Oldham Lords in Waiting (Whips)

My Lords, I am grateful to the noble Lord. Perhaps I may say that, so far as concerns the particular example he has cited, the number of hours of speech therapy required will be specified. However, I shall be only too happy to write in detail to the noble Lord before Third Reading.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, just as we were told in Committee, what the Minister has said in response to this amendment is neither clear nor transparent. The noble Lord began his remarks by suggesting that we are seeking to turn logic on its head. He spoke of strengthening a child's right to secure a place in a mainstream school, but there is an element of rigidity in what the noble Lord, together with his noble friend Lady Blackstone, is arguing here.

The Government have argued against acknowledging the wishes of parents where they wish to make a choice. They have argued against registration and they have returned to the rigid concept that a child must be educated in a mainstream school. They have argued against the notion that that should be compatible with the wishes expressed by the child's parents. They have argued against introducing the element of flexibility that would be present were the words "will normally" to be adopted here; namely, exactly as I said in 1992 and what I believe today. It is not acceptable to make a presumption. The use of the word "must" here is too rigid. In any dictionary, the word "must" is defined as signifying a rigid imperative and does not allow for any flexibility.

The Government have argued against adding the words, "in the best interests of the child". They have argued against the necessity to ensure that the provisions essential to the support of the child should be present in the school. This makes absolutely no sense. As I have said, it is neither clear nor transparent. The clause is rigid in its drafting and is designed for the Government to meet their objective; namely, that children, irrespective of their needs, will be moved from specialist provision into mainstream schools.

However, the Government are not prepared to give guarantees. They are not prepared to accept any amendment to the Bill that would ensure that adequate resources will be in place. They are not prepared to incorporate a form of words to the effect that the "best interests" of the child should be taken into account.

The Government are being prescriptive and restrictive here. They have turned their face against any element of flexibility. I find that both distressing and deeply disappointing. Parents and children will feel the same when the Bill becomes an Act and they discover that the fine words did not materialise. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 10 to 14 not moved.]

Photo of Lord Lucas Lord Lucas Conservative

moved Amendment No. 15:

Page 2, line 3, at end insert--

("( ) In this section a child is "educated in a mainstream school" if he receives the majority of his education at such a school.").

Photo of Lord Lucas Lord Lucas Conservative

My Lords, these or similar words were used by the Minister in her letter to me; however, she did not repeat this form of words in her reply to the amendment moved earlier by my noble friend Lady Blatch. I should like to know whether the Minister still stands by this formulation of what it means to be educated in a maintained school. If she does, can she point to the authority for it? She may be able to provide the authority merely by stating as much on the official record. That would at least give us some comfort as to how the phrase will be interpreted. I beg to move.

Photo of Baroness Blackstone Baroness Blackstone Minister of State (Education and Employment), Department for Education and Employment

My Lords, in our view the amendment is unnecessary. As I explained in my letter to the noble Lord, Lord Lucas, we believe that the detail of how dual placements work on the ground should be determined locally. This ensures that the arrangements are tailored to the needs of the individual child--and to the two schools, which is also important. What works for one child in one area cannot necessarily simply be transferred in another set of circumstances. The noble Lord is keen to say that being overly prescriptive is unhelpful. As I believe he and other noble Lords will agree, this amendment is too prescriptive.

However, I can assure the noble Lord that we shall provide further advice on the use of dual placements--both for children who have statements and for those who do not--within the guidance that will back up the new inclusion framework. This is statutory guidance to which schools and LEAS must have regard. In the light of that, I hope that the noble Lord feels able to withdraw his amendment.

Photo of Lord Lucas Lord Lucas Conservative

My Lords, I do not disagree with anything the noble Baroness said. However, I am disappointed with her reply. I am sad that she did not say what I asked her to say--namely, that she has some authority for the assertion that the phrase "educated in a mainstream school" allows dual placements. The Minister did not even say that that is what she believes. She certainly did not cite any reasons why the rest of us should believe that the phrase in the Bill allows dual placements to continue where part, or even the majority, of the dual placement is in a special school, particularly if it is an independent special school. I shall, therefore, return to the matter at Third Reading. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Northbourne Lord Northbourne Crossbench

moved Amendment No. 16:

Page 2, leave out lines 9 and 10.

Photo of Lord Northbourne Lord Northbourne Crossbench

My Lords, this brief amendment is a further attempt to clarify the meaning of part of the wording of the Bill.

In Committee, the noble Lord, Lord Davies, said:

"It is not our intention to prevent LEAs funding children in the independent sector if that is appropriate".--[Official Report, 23/1/01; col. CWH 48.]

I declare an interest as a trustee of the Caldecott Community, a residential therapeutic community for about 60 children, who are paid for in general by local authorities--and a great deal they pay too, about £75,000 a year, which shows what a difficult job it is to help those children.

I cannot see how that statement by the noble Lord can be reconciled with the words in the clause,

"if the cost is met otherwise than by a local education authority".

The purpose of my amendment is to probe how those two statements can be reconciled. I beg to move.

Photo of Lord Renton Lord Renton Conservative

My Lords, this amendment achieves almost exactly the same object as my Amendment 10. I warmly support it.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, I, too, strongly support the substance of the amendment and the questions posed by the noble Lord, Lord Northbourne. In Committee, the Minister said:

"If parents decide to educate their children in an independent or non-maintained special school, that is a matter for them. If a school is named on a child's statement, or an LEA is satisfied that a child with special educational needs should attend a particular non-maintained school, then under Section 348 of the 1996 Act, the LEA is required to meet the fees".

That is fairly straightforward: it applies to a child with a statement. Why should a child with special educational needs without a statement, where it is appropriate to educate that child in a non-maintained school, be treated so differently? The Minister went on to say:

"LEAs are also given the power to meet the fees of children attending specialised institutions outside England and Wales".

Does that mean Scotland, or Timbuktu? What exactly does it mean? The Minister continued:

"In other cases, the financial burdens of that child's private education should not rest either in whole or in part with the taxpayer".

Presumably that means that no fee at all can fall on the taxpayer. There is no other way of interpreting that sentence.

"LEAs should be required to fund places in non-maintained schools only where it is appropriate for a child's statement to name such a school, or the child's interests require that special educational provision be made for him at a non-maintained school, and the particular school is appropriate".

I am reinforcing the question asked by the noble Lord, Lord Northbourne. In addition to a child with a statement, the Minister says that,

"only where it is appropriate for a child's statement to name such a school, or"-- an alternative is given--

"the child's interests"-- she does not say the child with or without a statement--

"require that special educational provision be made for him at a non-maintained school, and the particular school is appropriate. Members of the Committee will agree that that preserves the efficient use of resources, and that has been the system up to now".--[Official Report, 23/1/01; CWH 54.]

If it says on the face of the Bill that a child can be placed in a non-maintained school but that the child is not prevented from being educated in an independent school or,

"a school approved under Section 342, if the cost is met otherwise than by a local education authority", that means that for a non-statemented child a local education authority will not be allowed in law to pay for a child, in whole or in part, in a non-maintained school.

If the noble Lord replies yet again that another part of a statute somewhere else will allow the LEA the freedom to pay, in whole or in part, for the non-maintained provision for a child without a statement, this provision is in conflict with that and it ought not to be on the face of the Bill. If the words on the face of the Bill mean that a child cannot be given a place, in part or in whole, in a non-maintained school, that is very regrettable.

Photo of Lord Davies of Oldham Lord Davies of Oldham Lords in Waiting (Whips)

My Lords, it would be regrettable if that were the intent or the effect of the proposals before the House. I want to emphasise, and to reassure the noble Lord, Lord Northbourne, as I sought to do in Committee, that the reference point for proposed new Section 316A(3) provides that the whole of the new section will have no effect on the operation of Section 348 of the 1996 Act. That is the base upon which decisions are to be made. That Act was piloted through this House by the noble Baroness, Lady Blatch. It contains provision for statemented and non-statemented children to have access to public support for attendance at non-maintained schools.

Proposed new Section 316A(3) makes sure that proposed new Section 316 will have no effect whatever on the operation of Section 348 of the 1996 Act. On that basis, I am able to give the noble Lord, Lord Northbourne, the assurances that he seeks. There is neither the intent nor the realisation of discrimination against the use of public funds to support a student in a non-maintained school where that is defined as appropriate.

Photo of Lord Northbourne Lord Northbourne Crossbench

My Lords, I am grateful to the Minister for that reply. I shall need to read in Hansard what he said. Clearly he is right, but the matter is deeply confusing. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, in moving Amendment No. 17, I shall speak also to Amendments Nos. 18 to 21. This has to be a repetition of what happened in Committee, but we continue to be as confused now as we were then about so many of the amendments.

New Section 316A(2) says:

"Section 316(2) does not require a child to be educated in a mainstream school during any period in which--

(a) he is admitted to a special school for the purposes of an assessment under section 323 of his educational needs and his admission to that school is with the agreement of--

(i) the local education authority,

(ii) the head teacher of the school or, if the school is in Wales, its governing body".

Why should that be so? And why should it be with the agreement of,

"any person whose advice is to be sought in accordance with regulations made under paragraph 2 of Schedule 26"?

I could go on. Those same people are invoked in paragraph (c) of that new subsection.

Why do all those people have such an influence over and above the one influence that matters--that of the parents--and the one consideration that matters; that is, what is appropriate and what is in the best interests of the child? All those named in that section should not have the right of veto.

If the child has been admitted to a special school, as the paragraph states, then the agreement of all concerned has already been sought and given, otherwise the child would not have been admitted to the special school. It is wrong to allow, as these subsections do, the local education authorities and the mainstream school head teachers to object. I beg to move.

Photo of Baroness Blackstone Baroness Blackstone Minister of State (Education and Employment), Department for Education and Employment

My Lords, the amendments in this group concern provisions for children who have special educational needs but who do not have a statement; in other words, the majority of pupils who have SEN.

Amendments Nos. 17 to 20 would mean that only parental permission would be needed in order to place a child without a statement in a special school, either during a statutory assessment or because of a change in their circumstances. The noble Baroness, Lady Blatch, is repeating what she said in Committee; that is, that her purpose in tabling the amendment is in part to reduce bureaucracy and to ensure that time is not wasted. However, she also felt that all concerned with the child would already have been in agreement.

I am sorry to say that there is not always the consensus that the noble Baroness assumes. She asked why other parties needed to be considered and to be at the centre of any agreement made. The reason is that parents' wishes are not necessarily always a reliable measure of the best interests of the child. We feel it is crucial that the step of placing a child without a statement outside the mainstream should be taken with the agreement of all parties--parents, LEAs, the head or governing body and other professionals; it should not be left solely to parental wishes.

Where a child has SEN, it can be traumatic for him and his parents. The SEN system may seem complex and parents sometimes need support and advice. We have no reason to believe that the existing arrangements are unnecessarily bureaucratic or timewasting. We set them out on the face of the Bill for clarity. Either unintentionally, or perhaps intentionally, the amendments relax the exceptional circumstances set out at new Section 316A(2). That could inhibit inclusion for children who would and should benefit from mainstream schooling, and that would be wrong.

Amendment No. 21 seeks to accommodate the wishes of the child before he is placed in a special school. As my noble friend Lord Davies said in Committee, the wishes of the child is a recurring theme and an important one that has implications for pupils beyond the scope of this Bill.

I can assure the House that the revised SEN code of practice, which will in due course be placed before Parliament for approval, will make absolutely clear that the views of the child should be taken into account wherever possible. Of course, that includes the statutory processes for making assessment and statements. Local education authorities and others will, by law, have to have regard to the guidance. We believe that to be the most appropriate way forward. I hope, in the light of my remarks, that the noble Baroness will feel able to withdraw her amendment.

Photo of Lord Baker of Dorking Lord Baker of Dorking Conservative

My Lords, before my noble friend replies perhaps I can ask a question. Do the four bodies who have to agree--

"the local education authority ... head teacher ... parent, and

(iv) any person whose advice is to be sought in accordance with regulations made under paragraph 2 of Schedule 26"-- have to be unanimous in their decision? Suppose it is three-one, either-way or two-two; is that a blocking? How does it work?

Photo of Baroness Blackstone Baroness Blackstone Minister of State (Education and Employment), Department for Education and Employment

My Lords, the parents can always go to a tribunal if they disagree with what is being suggested by the other parties. It is not a question of a blocking majority. This is not like an EU council. It is a different set of circumstances. The discussion should be constructive and relatively informal. A vote will not be taken.

Photo of Lord Baker of Dorking Lord Baker of Dorking Conservative

My Lords, I understand that parents can go to a tribunal. But suppose the LEA, the parents and the person in paragraph (iv) agree that the child should go to a special school, but the head teacher objects. Does the head teacher's view prevail? It is a matter for clarification and I am happy to wait for advice at a later stage.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, my noble friend's question is actually pertinent. Again, if one goes back to the words on the face of the Bill, it does not say the agreement of the local education authority "or" the agreement of the head teacher "or" the parent, and so forth. It actually says,

"(i) the local education authority,

(ii) the head teacher of the school ...

(iii) his parent, and

(iv) any person whose advice is to be sought in accordance with regulations".

So my noble friend's question is perfectly appropriate.

Photo of Baroness Blackstone Baroness Blackstone Minister of State (Education and Employment), Department for Education and Employment

My Lords, I confirm that of course all parties have to agree. They have to work together and find a consensus as to what is the right provision to meet the individual child's needs.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, that confirms the appropriateness of my noble friend's question. Suppose they do not agree. Suppose the result is three-one, two-two, one-three; what then? I was very depressed to hear the Minister say that parents can always go to tribunal. I thought this whole Bill was about trying to minimise the number of cases that actually go to tribunals. I thought the whole idea of having an informal conciliation service was to prevent cases from having to take the option of going to tribunal.

What happens if the result of discussion is two-two, three-one or one-three? We need to know. There must be an answer to that question. It is no good the noble Baroness saying, "Do not worry your pretty little heads about these things". They are pertinent questions. The Bill actually says,

"(i) the local education authority,

(ii) the head teacher of the school ...

(iii) his parent, and

(iv) any person"-- that could mean all sorts of people,

"whose advice is to be sought in accordance with regulations made under paragraph 2 of Schedule 26".

We know that a large number of people can be involved in such a decision.

The noble Baroness, Lady Blackstone, and the noble Lord, Lord Davies, have not yet said that the status of the extract of the document read earlier by the noble Baroness is definitive; we do not know whether it is the final draft and whether it will be available before the next stage of the Bill or, preferably, immediately after today's Report stage. In particular, it would be helpful to know whether the noble Baroness was saying that the specification in detail was unequivocal or would be qualified by the words, "if appropriate".

I do not know if the noble Baroness was criticising me--it certainly appeared to be an implied criticism--when she said that I was being repetitive. Of course I was. The arguments in support of my amendments have not changed. They are precisely the same. I conclude with the point on which I would have ended if my noble friend Lord Baker of Dorking had not intervened; that is, that there is not always a consensus on these matters. I am extremely interested that once again the Government have set their face against taking into account, where possible, the wishes of the child. The Liberal Benches may return to that theme later. So all those people have what appears to be a veto. We have no answer to what happens if their views are split. It would help me, before I decide what to do with the amendment, to have answers to some of the questions posed.

Photo of Baroness Blackstone Baroness Blackstone Minister of State (Education and Employment), Department for Education and Employment

My Lords, I did not answer the question about a so-called document, which was asked by the noble Baroness earlier, partly because I did not want to keep getting up and down at Report stage, as we have to make some progress. I can say categorically that I was not reading from any document. I was merely listing what the Government intend to be included in the code of practice. As I have said many times, the code of practice, which will be written when the Bill is enacted, will be brought to both Houses of Parliament for debate. I hope that that answers the question of the noble Baroness.

On the issue of disagreements, the purpose of Clause 3 is to find a way to get through such disagreements by a proper system of conflict resolution. I can tell the noble Lord, Lord Baker, that if a head teacher of a special school thought that it was inappropriate and wrong for a particular child to be sent to that school, he would have every right to say so. The head teacher would, of course, have to have good reasons for refusing the child admission, if all the other parties, including the parents thought that it was the right place for the child. However, there is not only one special school for particular needs; there are a number of them. I assume that, in those circumstances, the LEA and the other professionals involved would search for a school where the head teacher would not resist taking in the child.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, let us suppose that all the professionals whose advice has been sought, and who have become involved in the case, including the parents, agree with the head teacher, but the LEA does not agree. The noble Baroness has not faced up to that. The LEA is one of a block of four interested parties mentioned in the clause, which refers to "and", not either/or. The matter is unsatisfactory. I beg leave to withdraw the amendment, but shall return to the issue at the next stage.

Amendment, by leave, withdrawn.

[Amendments Nos. 18 to 23 not moved.]

Photo of Baroness Blatch Baroness Blatch Conservative

moved Amendment No. 24:

Page 3, line 13, at end insert--

("( ) "Reasonable steps" in the context of this section shall include the provision of specific, extra, supervisory staff; of specialist teachers; and where necessary of nursing staff, according to the special requirements of the individual child with special educational needs.

( ) A child with special educational needs shall not be admitted to a mainstream school unless the necessary extra staffing will be provided.").

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, I believe that Amendment No. 25 is grouped with this amendment.

The previous subsections to the clause refer to "reasonable steps" to be taken by the local authority and/or the school in order that a child may be admitted to the mainstream school. If such "reasonable steps" cannot be taken for good reason, the obligation to admit the child with special needs to a mainstream school will no longer apply. What are those "reasonable steps"? We should spell out in the Bill, not in some subsequent non-binding guidelines, at least what some of those reasonable steps are. I repeat what guidelines mean. It will not be for parents to argue about the specific support, or lack of it, for their child in a school. All that the LEA or the school need do is to say that in reaching their decision about provision and the steps that needed to be taken, they had regard to the guidelines. End of story. That is what the tribunal will consider.

When we come to the later clauses on disability, the reasonable steps are likely to include physical adaptation of the school premises, but for children with learning difficulties the most obvious reasonable steps are the provision of the necessary staff to cope properly with the needs of the child with special needs. I return to that same point with a new clause, which I suggest should be inserted after Clause 4, covering both special needs and disability, and in which we would allow governors to object to an admission if the necessary staffing is not in place.

Before the child joins the school, there needs to be in place the necessary extra staff. I note--and we have said this before--that the financial appraisal does not appear to include staffing implications for moving children from special needs into mainstream schools. That is a great puzzle to those of us following the Bill. Such staffing implications include teaching, supervisory and, possibly, nursing staff. The local authority must take reasonable steps to put such staff in place. If, in the context of Clause 1, the local authority is unable, for good reason, to put such staff in place--to take reasonable steps--it should be exempt from having to admit the child with special needs to that mainstream school.

One good reason might be that, at least for the present, no person with the necessary experience and qualifications for the particular needs of the child can be found. I beg to move.

Photo of Lord Addington Lord Addington Liberal Democrat 5:45 pm, 20th February 2001

My Lords, Amendment No. 25, in my name and that of my noble friend Lady Sharp, takes another approach, and follows Amendment No. 30 to which I spoke in the Grand Committee.

We believe that "reasonable steps" should be set out in the guidance, and that only a reference to such guidance should be contained in the Bill. That meets the Minister more than half way. In that way, guidance can be changed without going through the whole process of changing the Bill. There would also be a point of reference. It is important that those who are involved in such matters have an easy point of reference. Mentioning the guidance in the Bill might be a way of helping such professionals to find out what is meant. I suggest that this is a reasonable and progressive amendment.

Photo of Lord Baker of Dorking Lord Baker of Dorking Conservative

My Lords, this is the first occasion on which to address the question of the resource implications of the Bill. The Minister will be aware from our debates in the Moses Room and the comments that have already been made, that many of us fear that the resources will not be adequate to fulfil the full intention of the Government. I know that the Minister will say that extra resources have been allocated, but the Bill will have considerable consequences, especially if LEAs are required to spell out the provision that will be made for children with special educational needs, even for those with statements, let alone those without.

I spoke earlier about the provision in the school that I know about. I can call upon only one special school, dealing with blind children. The classes at GCSE level have a maximum of six. At the ages of four, five and six, the pupil-teacher ratio is 3:1 and 2:1, in some cases. I am referring to children suffering from low incidence disability. I believe that when local education authorities have to face up to providing that degree of provision, they will realise that they will have to recruit many more teachers.

I have tabled a Question, which has probably not yet reached the Minister's desk, asking for an estimate of the extra teachers and teachers' assistants who will be required in the next three to four years when the Bill's provisions are fully implemented. I hope that the Minister will be specific, although that hope might be dashed. I believe that there will be a big underlying increase in the provision of resources needed for the Bill.

Children who suffer from extreme disabilities will always go to special schools, but what about those who are not totally blind, but severely visually impaired, or those who are not totally deaf, but very hard of hearing, with an associated psychological problem? At present, many of these children are best dealt with in special schools. However, if they are going to attend mainstream schools, or special units maintained by the LEA, the Government must face up to the extra teaching that will be required. There are two big costs: the number of teachers and teachers' assistants, together with technical equipment. I shall give the Minister the opportunity to expand on that.

Photo of Baroness Young Baroness Young Conservative

My Lords, I support what both my noble friends Lady Blatch and Lord Baker have said. I was talking to a teacher quite recently about this Bill. Let us picture the situation in a primary school. There is a teacher with a class of 30. The teacher is asked to consider the special needs of any children who are particularly able in science. So he is looking for that.

Within those 30 children, there will be somebody with special educational needs, possibly a Down's syndrome child who will find reading very difficult. So there is an enormous range within one class with one teacher. That is the reality on the ground.

The teacher will do his best to be fair to everybody. There is a limited time in the course of the day and a limited ability of anybody to do something. It seems to me that this is a very serious issue relating to extra help for those who require it because there is such a range of disabilities.

Only the other day I visited a school for the deaf. Of course, there are great gradations between children who are completely deaf and those who are only slightly deaf. Teachers are being pressed to raise standards; to achieve better SATs results; and to urge the brightest children to show how well they can do. They must then also pull back to help those who are finding the going rather too quick or too difficult. That is no reflection on the child at all. But that is the reality.

Everybody hopes that this legislation will be a success for all the children who are being taught. I urge the Government to look very carefully at this issue, which seems to me absolutely key to making the Bill work.

Photo of Lord Renton Lord Renton Conservative

My Lords, I wish to add a few words to those very wise words which have been uttered by my noble friends Lady Blatch and Lord Baker.

I must acknowledge that the Government have a problem here. There is an overall shortage of teachers for ordinary mainstream schools. There is also a shortage of teachers trained to deal with special needs in special needs schools. It seems to be that that problem could be mitigated somewhat. When it is not possible to make that extra provision available in mainstream schools, then surely it is better that those children should be in special schools. That means that teachers in mainstream schools can get on with teaching children in the ordinary way while the children needing special training will be able to obtain it, perhaps more easily, by attending a special needs school rather than a mainstream school and being specially treated for their learning difficulties there.

Photo of Lord Williamson of Horton Lord Williamson of Horton Crossbench

My Lords, I support those who have drawn attention, by these amendments, to the question of resources. It is extremely important that we should not launch legislation which will change the current situation, and which I broadly support, without being a little more explicit on the question of resources. We must avoid launching a new iniative which is broadly supported in the country only to find afterwards that the resources are simply not there or the public believes that they are not there, particularly in mainstream schools which are dealing with pupils with special needs.

Therefore, we need something rather more explicit in the Bill. I go along with the amendments proposed, including the amendment put forward by the noble Baroness, Lady Sharp, which does not go as far but does at least indicate a benchmark in relation to the definition of "reasonable steps". That is important. I should not be satisfied with the answer that it is not necessary for that to be on the face of the Bill, which is an answer that we often hear. I believe that it would be useful to put it on the face of the Bill.

Photo of Baroness Blackstone Baroness Blackstone Minister of State (Education and Employment), Department for Education and Employment

My Lords, Amendment No. 24 seeks to set out on the face of the Bill that the steps it could be reasonable for maintained schools and LEAs to take in order to prevent inclusion being incompatible with the efficient education of others will include the provision of extra staff.

As I argued in Committee, it is not appropriate to set out details of reasonable steps in primary legislation. To do so could unnecessarily restrict the inclusion of children in the future. Inclusion is a process; it is not a fixed state. What is unreasonable now may not be in future when schools will be, we hope, more inclusive and more accessible. Instead, considerations of what reasonable steps could be will be set out in guidance. Of course, guidance will address issues such as staffing and training levels, as well as many others, in dealing with the question of how reasonable steps can be determined. LEAs and schools will have to have regard to the guidance which is referred to on the face of the Bill. Again, I assure noble Lords that we intend to consult widely on the guidance to make sure that we get it right.

The amendment refers to the special requirements of children with SEN. Those requirements are not what "reasonable steps" are designed to address. Their special educational needs are dealt with by the statementing process, which exists solely to make the special educational provision that their needs call for. Reasonable steps are steps which could be taken to protect the education of other children, including other children with SEN.

I do not believe that the noble Baroness, Lady Young, was present in Committee and I should tell her that I said then that where a child's inclusion would mean, even with other support, that the teacher had to spend a greatly disproportionate amount of time with the child in relation to the rest of the class, then a mainstream place may well not be appropriate.

The second part of the amendment would give an incentive to a maintained school which did not want to take a child with SEN not to take reasonable steps to prevent that child's inclusion being incompatible with the efficient education of others. If a child is not admitted to a school, his education cannot be incompatible with the efficient education of other children at that school. LEAs and governing bodies of maintained schools will not need to rely on that caveat, so the obligation to take reasonable steps will not be triggered. Our starting point is that, with the right support, many children--indeed, nearly all children--could be included in mainstream schools. We want to turn Section 316 into a positive endorsement of inclusion while also safeguarding the needs of all children.

I turn now to the questions raised by the noble Lord, Lord Baker, the noble Baroness, Lady Young, and the noble Lord, Lord Williamson, about resources. We are realistic about the need for extra resources. We are supporting expenditure of £82 million from the SEN standards fund next year, up from £55 million this year. That will support, for example, the expansion of parent partnership services. It will also provide funding for additional training for staff, as the revised SEN code of practice is brought into effect.

Of course, I accept that additional training will be needed. Indeed, all qualified teachers in future will need to have, as part of their training, the ability to recognise children with special educational needs and a whole lot of other matters associated with that.

We have also announced that schools will receive £220 million to improve access for disabled children over the next three years. The spending for school access in 2001-02 will be £50 million, rising to £70 million the following year and £100 million the year after that. Already the schools access initiative has supported work at about 6,000 different schools. That increase will have a very direct impact on the environment of many schools. It will certainly help to improve accessibility for disabled pupils.

I could go on but in the interests of time I should now turn to Amendment No. 25. This amendment seeks to include on the face of the Bill a requirement that guidance on Sections 316 and 316A will define what could be considered reasonable steps for maintained schools and LEAs to take in order to prevent inclusion being incompatible with the efficient education of others.

In Committee, I outlined that the appropriate place to set out what "reasonable steps" could be was in guidance. I am very pleased that the noble Lord, Lord Addington, agrees with me on that point. I also gave an assurance that Clause 1 will make provision in that respect.

I understand the strength of the debate over this issue. I am, therefore, happy to accept the principle being argued for on this occasion. I shall bring forward a suitable government amendment on Third Reading, so that a requirement will be placed in the Bill that the guidance referred to in Section 316A(8) will include advice about the "reasonable steps" mentioned in Section 316A(5) and (6).

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, because of the rules of the House, I shall leave the noble Lord, Lord Addington, to give his thanks when it comes to dealing with Amendment No. 25. I congratulate him. We have at least taken one small step forward for children with special needs; indeed, it is a very welcome one.

There is a genuine concern that teachers have to wait until someone goes to a tribunal before they know what is happening. They can take decisions in good faith, and can believe at the time that they are being entirely reasonable in the circumstances. Indeed, they can say, "We simply have no more funds available", "We simply do not have the staffing levels available", or, as in the example given by my noble friend Lady Young, "We simply do not have the expertise to cope with that range of ability within one classroom". It leaves teachers and head teachers--and, sometimes, even governors--extremely vulnerable, until someone takes the dramatic step of taking the matter to a tribunal and they are found to have acted unreasonably, albeit that, at the time, they may have acted in good faith.

I am sorry that it has not been possible to go a little further. However, if we are to have the steps spelt out in detail in guidance, that is a welcome step forward. Nevertheless, I believe that it would be preferable to have such provision on the face of the Bill. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 25 not moved.]

6 p.m.

Photo of Lord Ashley of Stoke Lord Ashley of Stoke Labour

moved Amendment No. 26:

After Clause 1, insert the following new clause--

:TITLE3:EARLY INTERVENTION SERVICES

(" . A local education authority shall provide early intervention services to children under 2 from the time of diagnosis of the disability onwards, where it can be demonstrated that such intervention is necessary to promote the early development of speech and language.").

Photo of Lord Ashley of Stoke Lord Ashley of Stoke Labour

My Lords, at first sight, it may seem that the extension of education to children aged from nought to two years of age is unimportant. When this proposition was first put to me, I must confess that I thought it was a little absurd because surely children of that age cannot absorb education in any meaningful way. However, the more that I have thought about it, the more reason there seems to be for my amendment.

The matter was first brought to my attention by David Livermore, the chairman of the Royal National Institute for Deaf People. I hope that my noble friend the Minister will respond constructively. The amendment is mainly concerned with profoundly deaf children. We all know that hearing children learn to speak at the crucial age of between nought and two; they learn how to use their voices and it is easy for them to learn. However, the opposite is the case for deaf children. Indeed, it is not only difficult for some children, it can also be absolutely impossible when it is a case of total deafness. and that is because of the brain's plasticity that the hearing child can use. Surgeons speak of the brain's plasticity: it can absorb sounds. However, in the case of total deafness, children cannot take advantage of this very great asset.

I am now a convert. I believe that helping young children at this very early age would really prove to be a major step forward. It would help them to develop their speech. It would mean a real change in the lives of deaf children. Surely that would be something very worth while. Most of all, I hope that my noble friend realises that it would reduce further education costs when the child is older. I am trying to save the Government money. Therefore, I cannot believe that my noble friend will not accept an amendment couched in those terms.

I want to anticipate what my noble friend the Minister may say. Currently, local education authorities can make provision for children aged up to two years. But the operative word is "can". There is no statutory obligation on them to do so. Any provision that they make can be, and is, very variable. Such provision is vulnerable to cuts by local authorities, which simply do not know, or care. It is not good enough to leave it to local authorities so that they can please themselves whether or not they meet this educational requirement for young children. There will be an increased demand when the Government's universal, neo-natal hearing screening gets under way. This amendment is vital because it would make the provision of education for such young children mandatory. That is the issue. I hope that my noble friend the Minister will go along with it. I beg to move.

Photo of Lord Rix Lord Rix Crossbench

My Lords, for some inexplicable reason, Amendment No. 26 regarding early intervention services tabled in the name of the noble Lord, Lord Ashley of Stoke, has been coupled with my Amendment No. 66, which is about nursery education. I suppose that a certain osmosis is discernible, but I should like to join the noble Lord in stressing the importance of early intervention services for people with a range of disabilities.

An estimated 20 per cent of children with learning disabilities also have some form of hearing impairment, and could well benefit from interventions to promote the development of speech and language. However, I trust that noble Lords will forgive me if I dwell for a few moments on Amendment No. 66. I do not intend to detain the House for long, as I do not believe that the Government and I are divided over the general principle of this amendment. Rather, it is a question of delivery of their intentions.

In Grand Committee, the Minister expressed the Government's intention to make the publication of an SEN disability policy a full condition of grant in the 2001-02 nursery education providers' condition of grant. That is a very welcome move, and one which takes us considerably further than current arrangements. However, I am in favour of dealing with this issue via regulations, which have a greater degree of emphasis and permanence than something written on to the back of a funding document. I was under the impression that the Government were also of that view when draft regulations were published last July.

I also believe that Her Majesty's Chief Inspector of Schools should have the power to inspect the implementation of that policy, so that we can be assured that the policy is more than something that is left to moulder in a filing cabinet and dusted off when a funding review takes place. I should be delighted if the Minister could confirm her intention to go ahead with that regulation; and, indeed, others that were published in July. I hope that she will also take this opportunity to explain how providers will be monitored and held to account in delivering their content.

Photo of Lord Morris of Manchester Lord Morris of Manchester Labour

My Lords, I shall be brief in supporting Amendment No. 26, the case for which I raised in Grand Committee on 30th January. This Bill, aptly described by Linda Shaw of the Centre for Studies on Inclusive Education as one of the most important anti-discrimination measures to have been considered by Parliament, needs to make urgent progress today; and I shall do all that I can to facilitate its progress.

One of the highest priorities in policy-making for disabled people is to reduce the handicapping effects of their disabilities. Failure to promote the early development of speech and language in deaf babies--much apart from reducing--hugely increases the handicapping effects of their disability, as well as exposing them to lifelong deprivation of the most cruel and punishing kind. Fundamentally, that is the case for this proposed new clause to the Bill.

My noble friend Lady Blackstone will recall the plea that I made in Grand Committee for early intervention services for children under two years of age where it can be demonstrated that it is necessary to promote language and speech. I argued then--and reiterate now--that such intervention can change lives. It can have a major impact on the development of a child's ability to communicate and this, in turn, increases her or his chances of successful mainstream education and reduces special educational needs. That makes good sense in cost terms as well as being more humane than a "do-as-you-please, when-you-please" approach to educational provision.

In responding to me in Grand Committee, my noble friend Lady Blackstone was not unsympathetic to my case for the purposes of this new clause. I very much hope she can go further today in accepting it. I am sure that she will want to be as helpful as she can.

Photo of Lord Baker of Dorking Lord Baker of Dorking Conservative

My Lords, this is the first time that one has really had a chance to debate the problems of young children from nought to two years of age. The noble Lord, Lord Ashley, has tabled an amendment that concerns speech and language. But, tragically, some children are born with a severe visual impairment and some are born blind. I cannot imagine a greater affliction. Those children also have their problems. If the Minister is minded to accept the general tenor of the amendment of the noble Lord, Lord Ashley, which has been supported by the noble Lords, Lord Rix and Lord Morris of Manchester, she would have to extend provision to those with other disabilities as well and even to those with physical disabilities.

The school for blind children with which I am involved has a nursery section. I hope to raise £½ million to build a nursery wing. The school accepts children of two and two and a half years of age. Usually they are totally blind or severely visually impaired. As one can imagine, they often have emotional and psychological problems even at that early age. There is absolutely no doubt--I endorse everything that the noble Lord, Lord Ashley, said in that regard--that a considerable influence to the good can be exerted in helping a child at that age. Their minds are growing and they are aware of sensory influences. If the Government are minded to make this provision available, I would welcome that.

If it is a question of making grants available to local education authorities and schools that provide education for those aged nought to two years, I should like to include in that provision the non-maintained schools, the special schools. Some of them are already making that provision available at their own cost from charitable funds.

Photo of Lord Addington Lord Addington Liberal Democrat

My Lords, both of the amendments address real problems. They both have one thing in common in that they seek to address these problems at an early stage. Let us learn from the Jesuits as regards this matter. I take the point made by the noble Lord, Lord Baker, that speech and language abilities are important, but so is visual recognition. If support can be provided to enable these children to communicate, one may reduce their emotional problems. If someone is deaf and dyslexic, one will probably not find that out as the person cannot talk. One has to be able to try to establish communication to be able to deal with these children also in later life.

I turn to Amendment No. 66 in the name of the noble Lord, Lord Rix. If a body is to receive funding, it should make adequate provision available. An amendment along the lines of Amendment No. 66 should be included in the Bill. I await with interest the Minister's comments. If we are to fund educational provision, we should ensure that it is satisfactory.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, I also support the amendments. I believe that on Second Reading and in Grand Committee, when speaking to other amendments, I said that the key to the success of the Bill would be early intervention. The more emphasis that can be placed on early intervention, the better matters will turn out. I strongly support the amendments. I have one question for the Minister. How do the amendments, which I support strongly, interact with a provision of the 1993 Act and, I believe, the 1996 Act, whereby statements can be made for children of the age of two? This is more than a question of children requiring statements. Some children will require intervention to prevent them needing full blown statements later. As I say, the key here is early intervention and I support the noble Lord, Lord Ashley.

Photo of Baroness Blackstone Baroness Blackstone Minister of State (Education and Employment), Department for Education and Employment 6:15 pm, 20th February 2001

My Lords, we believe that early identification of special needs and the provision of appropriate support for very young children with identified special needs and disabilities are critical if we are to help them to secure the best opportunities to succeed. We are wholly committed to improving expertise and services in this area.

The first of these two amendments seeks to secure government commitment to provide support, post-diagnosis, for children under two years, when it can be shown that the absence of early intervention will significantly impede speech and language acquisition. The effect of this amendment would be to place a duty on LEAs to support a child under two by providing speech and language support, where it is needed.

The second of these amendments--I believe that they have been grouped as they both concern young children--seeks to put a requirement on the face of the Bill to ensure that early years settings delivering government funded early education have an SEN and disability policy. While I cannot accept these amendments, I am more than happy to offer a very positive response that completely supports the intentions behind them.

With respect to the first of the two proposed amendments, the Government fully agree with my noble friend Lord Ashley of Stoke that early and appropriate intervention is critical to securing the best outcomes for children with special needs and disabilities who may have difficulties with speech and language acquisition. In fact, we recognise that early intervention is appropriate for all children--to respond to the noble Lord, Lord Baker--with special needs and disabilities. We do not think, however, that imposing a statutory duty on LEAs is the appropriate way forward.

LEAs do not have the same duties to make educational provision for children under two as they have in respect of those over two. However, they have the power to make and maintain a statement for children under two if they consider it necessary, and they must carry out an assessment of a child with SEN if they need to determine the special educational provision that the child needs, and the parents request an assessment. Thus, where a child's needs are such that educational provision cannot be made without providing a statement, the LEA can make that statement and set in place arrangements to provide for the child. I hope that that answers the question of the noble Baroness, Lady Blatch. Any parent who considers that an LEA should assess, or make or amend, a statement for his or her child under two can, if they are dissatisfied, complain to the Secretary of State, who can direct the LEA to take action.

We are already investing significantly in pilot activity and projects around the country to try to advance and evaluate best practice. Sure Start programmes focus on children under four. We are expanding those programmes and they are in the lead in developing a multi-agency approach, which we favour. The Department of Health recently announced a pilot of 20 sites around England to introduce Universal Neo-Natal Hearing Screening (UNHS), a new hearing test for babies in the first few days of life. My department has taken a number of steps to support the pilot.

The National Screening Committee, which advises the Department of Health, regards UNHS as a much more effective (and, indeed, cost-effective) approach than the infant distraction test which is currently used but has concluded that rather more work is needed on the practicalities of introducing the change across the NHS--hence the pilot projects.

We consider that the most appropriate way forward is to establish a multi-agency working party that would include representation from specialist bodies with an interest to develop practical guidance for the range of professionals involved in the identification of, and support for, young children's special needs. We envisage that the Special Educational Consortium (SEC) should play a key role in this work, as the leading umbrella organisation for those with an interest in children's SEN and disabilities. The guidance will exemplify best practice and set out in practical terms how practitioners and agencies should work together to optimise the support they can offer to children who need it and their families. We intend that it should discuss the importance of early identification and intervention; explain the legal responsibilities of the agencies involved; and address the needs of families as well as individual children. As part of this, it will establish protocols for engaging services for children who need them. The working party will include in its remit work to establish a system of monitoring and review to be overseen by Government to ensure that the guidance is implemented effectively.

Local authorities have duties under the Children Act 1989 to provide services for disabled children within their area so as to minimise the effect of their disabilities. The guidance will provide advice on what those services might be for the under-twos and how they might be provided. If the local authority acts unreasonably in failing to provide those services, it can be held to account through judicial review.

For the future, we intend that early years and childcare development partnerships should acknowledge the cross-departmental guidance in their plans and explain how they will implement that guidance. This is not the realm of a single department. A joint approach is essential and I hope that a working party along the lines that I have outlined can deliver what we are all seeking. Ministers in my department have already discussed this idea briefly with colleagues at the Department of Health who have indicated their support. Further meetings between officials are planned for the near future.

I turn to the second of the amendments. We support fully the notion that all early years settings delivering government funded early education should have an SEN policy and we are committed to achieving that. But I do not think that it is necessary to have further legislation to do so. Conditions of grant are an entirely appropriate mechanism for achieving the desired aim with respect to SEN policies. They ensure that the requirement has the right profile and the very fact that they are conditions on which payment depends helps to ensure that the requirement bites. There is certainly the power to impose this requirement as a full condition of grant, but there is less certainty about the power to bring about the same end in regulations.

The 2002 revision of Requirements of Nursery Education Grant will make it a full condition of grant for settings to have an SEN policy. Setting such a requirement is currently an option for LEAs. So making it one of the full conditions on which grant is dependent represents a significant strengthening of the arrangements. This change is not a temporary one. We are committed to long-term improvement. Our investment record in this area to date should confirm that. We intend to continue to improve early years SEN support and expertise through a programme of development and training for practitioners.

Enforcement arrangements to ensure compliance with the Requirements of Nursery Education Grant are robust. District auditors will ensure that LEAs comply with the conditions for administering grant. And Ofsted inspections of early years settings delivering government-funded early education will check that SEN policies are in place and that they are being implemented.

I am pleased to confirm that the requirement will stay a full condition of grant. I hope that that reassures my noble friend Lord Rix as to the importance we place on that and that he feels able to withdraw his amendment. I also hope that I have reassured my noble friend Lord Ashley. Increasingly, very young children's needs will be identified early, as they should be, and appropriate action will be taken to get the right support in a timely fashion. On that basis I hope, too, that my noble friend will feel able to withdraw his amendment.

Photo of Lord Ashley of Stoke Lord Ashley of Stoke Labour

My Lords, I thank all noble Lords who have taken part in the debate, especially for the support that they expressed for my amendment.

The noble Lord, Lord Baker, was right to raise the point about blind children and those with other disabilities. I spoke about deaf children. I have been President of the Royal College of Speech and Language Therapy for some five years. I am President of the RNID. I am especially interested in the problem; it is a personal problem. I am glad that the Minister accepted the noble Lord's point.

I am sorry that the Minister could not go all the way on the amendments, although I appreciate the spirit in which she advanced her arguments. It is a considerable advance. However, before Third Reading, I should like to know, first, whether the guidance is to be mandatory. If someone with whom I disagree offers me guidance I say, "Thank you very much", and go my own way. So guidance can be important or unimportant; and unimportant guidance is of no value, no matter how kind the Minister's words may be. We seek assurance that the guidance will be mandatory.

Secondly, unless the guidance is monitored carefully, we shall get nowhere. It will go by default. Can the Minister assure us that it will be monitored carefully by the Secretary of State?

Thirdly, working parties can take years. How soon can we have the guidance? I hope that it will be strengthened by my noble friend's efforts. I am sure that she will do what she can. The RNID and noble Lords who have spoken in the debate regard this amendment as profoundly important. I shall be grateful for the continued endorsement of my noble friend. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness David Baroness David Labour

moved Amendment No. 27:

After Clause 1, insert the following new clause--

:TITLE3:LOCAL EDUCATIONAL AUTHORITY TO TAKE ACCOUNT OF WISHES OF CHILD

(" . In section 323 of the 1996 Act (assessment of educational needs), after subsection (4) insert--

"(4A) In making an assessment under this section, the local education authority shall take account of the ascertainable wishes of the child."").

Photo of Baroness David Baroness David Labour

My Lords, in moving the amendment I speak also to Amendment No. 28. They are grouped together and both have the support of the noble Lord, Lord Rix.

We had long discussions in Committee about these and similar amendments. There was strong support from all sides of the House. The Minister said that the amendments were unnecessary: that the code of practice and guidance would ensure that the voice of the child would be heard, and that would be statutory. I should say that the purpose of Amendment No. 27 is that the child's views are taken into account in the making of an assessment; and Amendment No. 28 ensures that the child's views are taken into account in the making and maintaining of a statement.

The Minister's remarks about the code of practice and the statutory guidance were not accepted as satisfactory by the children's organisations. There was a good deal of disappointment all round that we did not have a better reception for our amendments. I think that the perception is very important. Those children's organisations really want the voice of the child written on the face of the Bill. It is not enough just to say that the guidance is statutory.

There is a precedent in the Children Act for the voice of the child being on the face of the Bill. If it were accepted in this Bill it would mean that the educational side would also be on the face of the Bill. Also in the Standards in Scotland's Schools etc Act 2000 the voice of the child is mentioned.

I do not want to take up the time of the House, but I should like to impress on my noble friend that there is very strong feeling about this issue. I hope that she can be a little more helpful than she was in Committee. I beg to move.

Photo of Lord Rix Lord Rix Crossbench

My Lords, I echo the sentiments of the noble Baroness, Lady David. I recognise and welcome the Government's attempts to strengthen the voices of children within the code of practice. But I believe that a greater degree of precision is necessary to link the wishes of the child to statutory assessments and the drawing up of a statement. Without doubt, this would benefit young people, families and educational practitioners.

In Committee, I highlighted the importance of proactively seeking the view of young people with learning disabilities and supporting them where necessary. I believe that that should be routinely done. There was also much debate on the difference of opinion between children, their families and professionals. The amendment does not suggest that the child's voice should be paramount. It is a sensible step forward, ensuring that children with disabilities have a real stake in decisions which crucially affect their lives.

Photo of Lord Beaumont of Whitley Lord Beaumont of Whitley Green

My Lords, it is very important that we should acknowledge as often as possible in the Bill the need for children to have their wishes about their own future heard. As the noble Lord, Lord Rix, said, it is not a question of those wishes being paramount, but of their being taken into account. It is important that they should be seen to be taken into account, not just by a mention in the code of practice, but by a specific mention in the Bill. I hope that the Government will see their way to accepting the amendments.

Photo of Lord Williamson of Horton Lord Williamson of Horton Crossbench 6:30 pm, 20th February 2001

My Lords, I support the amendments. Of course local education authorities and responsible teachers will take account of the ascertainable wishes of the child, but what goes into the Bill is important. We have already dealt with a number of amendments that would have included the words, "the wishes of the child". None of them has passed the Blackstone barrier. I do not complain about that. The Minister has explained her views. However, it is bizarre that Part I of a Bill that deals with special educational needs does not contain a single reference to the wishes of the child. That should be corrected. That is why I support the amendments.

Photo of Lord Baker of Dorking Lord Baker of Dorking Conservative

My Lords, I, too, support the view expressed by the noble Lord, Lord Williamson. The amendments would be a sensible change. It is right that the wishes of the child should be taken into account if they are ascertainable--an important condition. It will not be possible to ascertain the wishes of some children who have a mental impairment. However, the great majority of the children concerned do not have a mental impairment.

I have come across these children in large numbers and have discovered that, by the age of 10 or 11, having been looked at, examined, probed and asked questions endlessly, they have become expert in their disability and are usually very articulate about it and able to discuss their problems in an adult way. If their wishes can be ascertained, they should be taken into account. I hope that the Government will be sympathetic.

Photo of Baroness Sharp of Guildford Baroness Sharp of Guildford Liberal Democrat

My Lords, I, too, support the amendments. My name should have been attached to them, but they were tabled rather late and I was not able to add my name to them.

A number of arguments for the amendments have already been articulated. There is also the, "Does he take sugar?" principle. There is a great danger of not taking into account the wishes of the person about whom we are taking decisions. We are not saying that those wishes should be paramount. On some occasions, they are not ascertainable, but if they are, the wishes of the person about whom we are taking a decision should be considered.

There is also the issue of the ownership of the principle. If the children have been consulted, they are more likely to be happy with the decision. There is a precedent, which we mentioned in Grand Committee. The Special Educational Needs Tribunal has, from time to time, listened to children and taken account of their wishes.

The noble Lord, Lord Lucas, raised another important issue in Grand Committee. Some children do not have parents to speak up for them and have to rely on local authority social services departments. If the wishes of the child are ascertainable in those circumstances, they should certainly be taken into account.

In Committee, the Minister told us not to worry, because there was a whole chapter in the code of practice dealing with the issue. However, some people do not necessarily always adhere to the strict letter of the code of practice. If the provision is written into the legislation, they are more likely to obey it. We therefore feel that it is better for provision to be made on the face of the Bill. Both amendments would do that.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, I, too, support the amendments. I re-emphasise the key points already mentioned--that the wishes of the child should be ascertainable and that they should simply be taken into account. They do not have to be met if that is not in the educational interests of the child. Clearly, the professional judgment about what is in their interests may well supersede. The noble Baroness, Lady David, has simply made it clear that those wishes should be taken into account.

Like the noble Lord, Lord Williamson, I am deeply disappointed that there is no reference in this part of the Bill to the wishes and interests of the child. Both issues are important, although they may not always be the same. The wishes of the child may not entirely be reconciled with their educational interests. However, they should be primary aims of the Bill. The Minister keeps saying that they are, but the Bill would be much strengthened if those issues were on the face of the Bill and the Government would lose nothing if they conceded the point. I strongly support the noble Baroness, Lady David.

Photo of Baroness Blackstone Baroness Blackstone Minister of State (Education and Employment), Department for Education and Employment

My Lords, the amendments would require LEAs to take account of the ascertainable wishes of the child when carrying out assessments and making and maintaining statements of SEN. We fully support the principle that the views of the child should be taken into account whenever they are ascertainable, according to the child's age, maturity and understanding. However, I fear that I am going to disappoint my noble friend Lady David and others who have spoken. We do not believe that putting the provision on the face of the Bill is the right way forward.

We can achieve a sensible solution through the SEN code of practice. We give the views of the child clear prominence as a fundamental principle at the beginning of the draft revised SEN code of practice. We have devoted a whole chapter in the draft to seeking the views of children and young people with SEN throughout their school life, including in their early years. Going beyond what I said in Committee, we shall enhance the guidance in the final version of the revised code of practice to carry an expectation that schools and LEAs will seek and take account of the views of the child wherever possible. We shall ensure that there are clear links between the general principles in the chapter on pupil participation and the later chapters on specific aspects of the formal processes for making assessments and statements, for example in relation to decisions about the provision to be made for a child or young person.

We will encourage schools and LEAs actively to involve pupils in other ways, such as through setting and reviewing individual education plans during the school year and by encouraging and supporting children to give their views on their progress during the previous year, to discuss any difficulties encountered and to share their hopes and aspirations for the future in the annual review and transition processes. That could involve attending all or part of the annual review and other meetings.

In addition to strengthening the SEN code of practice, we are strengthening the arrangements for hearing the child's views at tribunals. The new SEN tribunal regulations will entitle the child to attend the hearing of an appeal and give evidence at the tribunal's discretion. The current regulations do not expressly entitle the child to attend hearings. That is another step forward.

Strengthening the provision in the revised code of practice is not a soft option. I remind the noble Baroness, Lady Sharp, that LEAs must, by law, have regard to the code of practice. They cannot ignore it. If it contains an expectation that they will seek and take account of the ascertainable views of the child or young person in relation to assessments and the provision to be made for them, the LEA will need to do that. The Secretary of State can consider a formal complaint if they do not. The SEN tribunal will consider whether LEAs have complied with the code of practice when it hears appeals. The new SEN tribunal regulations will also require an LEA responding to an appeal to state the ascertainable views of the child. Having heard my reassurances and the fact that the code of practice will really bite in this respect, I hope that my noble friend is able to withdraw her amendment.

Photo of Lord Rix Lord Rix Crossbench

My Lords, before the Minister sits down, perhaps I may ask a question. Recently the DfEE released a video which shows parents attending a tribunal. Does not the Minister believe it appropriate to withdraw that video, for the child is not present at the moment? If the child is to be present under the terms of this Bill, then I assume that the video should be brought up to date.

Photo of Baroness Blackstone Baroness Blackstone Minister of State (Education and Employment), Department for Education and Employment

My Lords, I am happy to give an assurance to the noble Lord, Lord Rix, that we shall look again at this video to see whether we can adjust it to take that factor into account.

Photo of Baroness David Baroness David Labour

My Lords, I thank all noble Lords who have spoken in support of this amendment. I am pleased that that support has come from all round the House, which is very satisfactory in itself. I do not pretend that I am not disappointed by what my noble friend has said, but I suppose that I must draw some crumbs of comfort from the fact that she is going to enhance the guidance and strengthen the code of practice, particularly as regards the tribunals. Rather reluctantly, I accept what my noble friend has said and hope it will work out in practice. I shall naturally be following the matter with very great interest when the Bill becomes an Act. I beg leave to withdraw the Amendment

[Amendment No. 28 not moved.]

Photo of Baroness Blatch Baroness Blatch Conservative

moved Amendment No. 29:

After Clause 1, insert the following new clause--

:TITLE3:INFORMING SCHOOLS

(" . In paragraph 3(4) of the 1996 Act, after second "school" insert ", providing them with a copy of the draft statement,".").

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, I spoke to this amendment at Committee stage. I was speaking in support of a very real concern of the National Association of Head Teachers. I made the point, which was made to me, that the association supports the aims of the Bill and that it wants the Government to know that. I suspect that they know it anyway because they have been in discussions with that body. The association also wishes to be party to making the Bill work. Therefore, its starts from a very positive position.

At col. CWH 87 of Hansard of 29th January, the noble Lord, Lord Davies of Oldham, when commenting on this amendment, spoke of the intention under the code of practice to provide full information to the proposed school, including the draft statement. But the point of the amendment on that occasion, which I again make today, is to assure schools that sight of the draft will be sufficiently timely for the school to have a meaningful input. The noble Lord is probably well aware of it anyway, but perhaps I may remind him that, at CWH col. 88, he said that he would consider what had been said. On that occasion he appeared to be reasonably impressed with the arguments and the concerns expressed on behalf of schools.

As I have said, the head teachers are very positive about the aims of the Bill and about wanting to make it work. However, they need to be involved in the process at a stage when they can make the kind of input that would either make it easier to pave the way for young people to be received into their schools or to prevent a situation becoming much more difficult where tensions rise, tempers are frayed, the parents, children, and perhaps the professionals, are very frustrated by the process. If they can be involved at a very early stage some of these problems may be avoided. I beg to move.

Photo of Lord Davies of Oldham Lord Davies of Oldham Lords in Waiting (Whips) 6:45 pm, 20th February 2001

My Lords, as the noble Baroness has rightly said, I gave some positive indications at Committee that the arguments she put forward on that occasion found considerable favour and that we would seek to make progress along the lines which the noble Baroness suggested.

We have tabled Amendment No. 64, which is a paving amendment for Amendment No. 152, which is tabled in the name of my noble friend Lady Blackstone. That will ensure that maintained schools, which an LEA is considering naming in a child's statement, will receive a copy of the proposed statement or proposed amended statement for that child. Where a school being considered is in the area of another authority, the school and that authority will also receive a copy. That will ensure that schools are fully consulted and previous good practice in this area is standardised. The noble Baroness referred to good practice in Committee.

Head teachers will be able to discuss with the LEA the arrangements that may be required to make provision for the child within the school. The agreed arrangements can then be reflected in the final statement or alternatives can be considered. In those circumstances I hope that the noble Baroness, Lady Blatch, can safely withdraw her amendment.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, I am very grateful for the positive way in which the noble Lord has responded to my amendment. I wish to be absolutely clear that timeliness has been properly taken on board; that we are not talking about the proposed statement, but a draft before it is proposed as the final statement. Therefore, it will be at a stage when the statement itself can be modified in the light of the opinions of the receiving school.

If I heard the noble Lord correctly, he referred to the named school. In the course of drafting statements and making choices about which is the appropriate school, more than one school will be mentioned. It may be a school preferred by a parent, one named by a professional or a different school named by the LEA. I would like an assurance about timeliness and the fact that in the draft statement there may be reference to more than one school.

Photo of Lord Davies of Oldham Lord Davies of Oldham Lords in Waiting (Whips)

My Lords, I can certainly give an assurance that the draft statement is also included within the framework of the proposed Amendment No. 152, which we shall have the opportunity of debating at a later stage at Report.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Photo of Lord Renton Lord Renton Conservative

moved Amendment No. 30:

After Clause 1, insert the following new clause--

:TITLE3:EXERCISE OF FUNCTIONS UNDER PART IV OF 1996 ACT

(". In the 1996 Act, after section 316 insert the following section--

"Consideration of disproportionate expenditure.

316AA. In the exercise of any functions under this Part, provision is not to be considered as giving rise to disproportionate expenditure only because that provision is more expensive than comparable provision." ").

Photo of Lord Renton Lord Renton Conservative

My Lords, this amendment relates to a new clause which raises the question of comparable expenditure. It says in effect that in deciding whether a mainstream or a special school is to be preferred, the cost should be irrelevant; that is to say, that the wishes of the parents and the needs of the children can be given priority irrespective of the cost.

This amendment was moved in Committee by my noble friend Lord Pearson of Rannoch, who cannot be here today. The main point in favour of the amendment is that in the Learning and Skills Act 2000 the principle contained in the new clause was applied to students between the ages of 19 and 22; so why should it not apply to younger pupils?

Perhaps I may quote one short passage from my noble friend when moving the amendment at Committee stage. He said,

"Special schools benefit from economies of scale and from a concentration of personnel and facilities for SEN children in a way which cannot be matched in the necessarily more dispersed environment of a mainstream school".--[Official Report, 29/1/01; col. CWH 81.]

Therefore, there appears to be a strong case for this amendment. I beg to move.

Photo of Lord Davies of Oldham Lord Davies of Oldham Lords in Waiting (Whips)

My Lords, we resist this amendment, which would have the effect of making LEAs incur greater costs in making special educational provision than is necessary. Local education authorities are required to provide education as efficiently as possible for all children, including those with special educational needs, but not of course to make the most expensive provision available.

I hope that the noble Lord, Lord Renton, and others will accept that there are no convincing reasons to alter the present situation provided that local authorities can meet the child's needs in full at a more reasonable cost. LEAs are not required to make utopian provision for some children, but rather to make suitable and adequate provision for all children with SEN who may need it.

If LEAs did not take into account the cost effectiveness and value for money of the provision, they could justly be accused of wasting public money. The Government certainly do not want that. Of course, if LEAs fail to make acceptable provision for pupils with SEN, they should not hide behind arguments about prohibitive cost to excuse themselves. However, if a parent considers the content of a statement of SEN to be unacceptable, he or she can already appeal to the Special Educational Needs and Disability Rights Tribunal. The Secretary of State for Education and Employment may investigate other complaints about possible unreasonableness or failure to act in accordance with the statutory duty of LEAs. The amendment therefore seems to us to impose a quite unnecessary straitjacket on local education authorities.

In addition, should LEAs spend more than is necessary on provision for young people with SEN, other deserving children might be prevented from having the support that they deserve and need, which would be to the detriment of their education and future attainments. That would be a thoroughly unsatisfactory situation, but I fear that that may happen if more articulate and well-informed parents choose to exploit the opportunity that would be offered by the proposed new clause. Local education authorities must be free to decide what would be most suitable for each child. Less costly provision can often serve the child as well as, and sometimes even better than, more expensive alternatives.

I also point out that LEAs that seek to make an efficient use of resources do not necessarily have to settle on the least expensive provision for a child. The one does not always equate to the other. For example, it might be an efficient use of resources to opt for more expensive provision in the short term so that a child needs less help, and less funding, in the longer term. It is right that LEAs should be able to consider each case on its merits.

I hope that in the light of my comments the noble Lord will feel able to withdraw the amendment.

Photo of Lord Renton Lord Renton Conservative

My Lords, the Minister may be forgiven for giving that reply. The amendment's drafting may need to be altered and improved.

I hope that the explanation that I gave when I moved the amendment was concerned not with the cost of establishing the schools but with the necessarily comparable cost, which is unavoidable, that arises when there is a choice between one type of school and another, both of which may have been established with the greatest economy but which nevertheless are not identical. The principle is that the child with SEN should not be prevented from going to whichever school is most suitable merely because the cost of one is a bit more than that of the other. That is all that my point is and all that the amendment was intended to get at. However, I dare to forgive the Minister for giving that reply; I quite agree that the amendment's drafting could be reconsidered. In view of his reply, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 [Advice and information for parents]:

Photo of Lord Baker of Dorking Lord Baker of Dorking Conservative

moved Amendment No. 31:

Page 3, line 30, at end insert ("all alternative options for").

Photo of Lord Baker of Dorking Lord Baker of Dorking Conservative

My Lords, this is the first occasion on which we consider the advice that is made available to parents when they realise that they have a child with SEN. Some parents of course realise that when their child is at a very early age, because the symptoms are so observable. Other parents come to that view rather later. Some parents with a child with learning difficulties are often reluctant to recognise that their child has SEN and tend to blame the school. Whatever the stage, parents recognise at some stage that their child has SEN, and they have to search around for the best advice.

I hope that the Minister will agree to the amendment in the light of the gist of what was said in Committee. When a similar amendment was moved I was unfortunately absent that day. However, it was moved absolutely brilliantly by my noble friend Lady Blatch. In reply, the noble Baroness, Lady Blackstone, was very optimistic and encouraging. She said:

"The Government are aware that it is essential that parents know about the wide range of options that will be available to help them make good decisions about the education of their children with SEN. It is fundamental to the role of the parent partnership services. The Bill provides for advice and information to be given about matters that relate to children's special educational needs, and those will include details of how the SEN system works, parents' and children's rights, and"-- this is the important point--

"the various options that are open to parents".--[Official Report, 29/1/01; col. CWH 98.]

I draw great comfort from that phrase. One option that is open to parents involves the availability of special schools in the non-maintained sector. I again point out that those schools are not similar to Eton; they are fundamentally funded--in some cases, they are almost completely funded--through sources from the public sector. They are usually charities, which raise considerable sums of extra money--several million pounds a year--for those schools. It is important for a local education authority to bring to the attention of parents the existence of such schools. Some LEAs do so; Kent, for example, which is a frank and open LEA, does so. However, other LEAs are reluctant to say that 20 or 30 miles away, or even on the doorstep, there is a special school that can provide assistance to those who are hard of hearing, severely physically disabled or visually impaired.

My point in the amendment is that when the code is redrafted and when guidance is given, it should be stated that alternative schools outside an LEA should also be drawn to the attention of parents. I beg to move.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, I rise to support my noble friend, who made a powerful case in support of the amendment. I also wish to discuss two amendments that are grouped with Amendment No. 31; namely, Amendments Nos. 32 and 36, which appear in my name on the Marshalled List.

Proposed new subsection (1) in Clause 2 states:

"A local education authority must arrange for the parent of any child in their area with special educational needs to be provided with advice and information about matters relating to those needs".

We have no argument with that. However, in this context we are considering a child about whom, until that point, there had been no suggestion or indication that he or she had SEN. Neither the LEA nor any other body has assessed the child. Who is to say at that stage that the child does or does not have SEN? When that matter was raised in Committee, the noble Baroness, Lady Blackstone, said:

"Where children definitely have special educational needs--that has been agreed by the school, the local education authority, educational psychologists and others--they need to have access to this advice and information".--[Official Report, 29/1/01; col. CWH 97.]

From that, we may infer that the child is deemed to have SEN if the LEA, the school, educational psychologists and others consider that the child has SEN. Again, we do not argue with that.

Your Lordships will note that the child's parents were not included in the list of persons who make a preliminary assessment. However, is it not highly probable that the first people who will note some difficulty or aberration, or the fact that something is not quite right with the child, will very often be the child's parents? After all, they are with the child more than anyone else. No doubt such parents will make an informal visit to the school and ask the teachers whether they have noticed anything unusual about the child. Whether or not the teachers confirm the parents' concern, the parents will still think that there is a possibility that the child has SEN, even if the parents have, until that point, never heard of the expression, "special educational needs". They may well say, quite simply, that the child is having difficulty learning or is not behaving normally, or they may find another explanation for whatever the apparent problem appears to be to them. They will want to know where they can go for further professional advice. Of course, it reinforces their case if the school also believes that something is amiss, but in the early stages of a difficulty it is likely that it will be the parents who will notice that there is a problem.

I am arguing for statutory requirements, as provided for in the Bill, enabling the LEA to give advice and information or to point the parents in the direction of such advice and information not only if a child definitely has special needs but if the parents believe that it has. We are talking about advice and information to parents at this stage. Such a request from parents is not going to be made capriciously. No parent likes to believe that there is something wrong with their child. They will not voice their concern to the LEA or anyone else unless they have good reason to believe that something is wrong.

All the talk that the noble Baroness gave us in Committee about the development of the parent partnership services or about guidance being avalable at some future time is never going to meet the particular situation of my amendments, where the parents of a child who has special educational needs must know where to go for further advice and information. Such advice may well confirm their fears and point them in the direction of assistance or it may reassure them that their perceived difficulty does not amount to special educational needs.

After all, we are agreed throughout the Chamber about early intervention and we should not be hung up as to who spots the need for it. If it is a parent, that ought to be given a place in the Bill. It should be a duty on the LEA to provide advice and information to all parents who need it and not just to those who are thought by the LEA to need it.

At Committee stage the noble Baroness appeared to have a lack of sympathy for such parents. Certainly I found her refusal to put this simple provision in the Bill quite unacceptable. If a parent is genuinely concerned that the child has particular learning difficulties, it is important that advice should be available when they seek it.

My Amendment No. 36, which refers to Schedule 27 to the 1996 Act, provides that when an LEA makes a statement on a child the LEA shall make certain information available in writing to a parent.

Photo of Lord Lucas Lord Lucas Conservative

My Lords, my Amendment No. 33 should be in this group. I think that my noble friend Lady Blatch has said almost everything I would want to say. The time parents really need help is when they do not know what is going on. In those circumstances it is very difficult for them to know where to turn. They should be able to rely on a local authority at least for help on where they should go and how they find out about these difficult and often hard-to-get-to-the-bottom-of conditions from which children in quite large numbers suffer.

Photo of Lord Davies of Oldham Lord Davies of Oldham Lords in Waiting (Whips)

My Lords, it will come as no surprise to the House to recognise that the Government share the broad intentions behind the amendments. We want parents to have the maximum relevant information as a contribution to the development of their child's education. I have what I hope the noble Lord, Lord Baker, will regard as just a minor quibble with his amendment. It specifies the wrong line, and technically is therefore not quite acceptable, but I fully understand the intent behind it and I shall address myself to that.

The Bill provides for advice and information to be given about matters relating to special educational needs and about how the system works. Parental rights under the legislation, as well as a wide range of options, are open to parents. I repeat the assurance given by my noble friend Lady Blackstone at Committee stage that the revised code of practice will clearly set out the provision of advice and that information on SEN matters will be part of the minimum standards and core functions to be expected of parent partnership services. There is no question of those services seeking to promote a particular type of school or discouraging parents from opting for certain types of provision. That would be totally unacceptable.

It is not for the parent partnership service to seek to promote or champion any particular type of placement or to seek to persuade parents to accept a certain type of provision. Rather, their role is to give parents accurate information on the available options to help them make informed decisions for themselves. I can assure the noble Lord, Lord Baker, that we will cover this within the minimum standards we expect all parent partnerships to achieve. I hope that, given these reassurances, he may consider withdrawing his amendment.

Amendment No. 32 would give absolute rights to information and advice to parents who simply claim that their child has special educational needs. Parent partnership services must not be open to possible misuse. As my noble friend the Minister said during Committee stage, we will be making clear in the revised code of practice and the accompanying good practice guide that parent partnership services must be flexible in their approach. It will be made clear that they must not turn away any parent out of hand.

We know already that they do not draw any hard and fast lines and we shall encourage this flexible approach. My noble friend acknowledged at Committee stage that there are cases where a child's special educational needs may not have been recognised or identified, and parent partnership services can help by supporting parents in pursuing the matter with the school or the LEA. This was a point raised by the noble Baroness, Lady Blatch.

Some parents may think their child has special educational needs when in fact they do not. They may simply not be doing as well at school as their parents had hoped. Parent partnership services should not be expected to provide advice and information on non-SEN related matters. Their prime role is to help the parents of children who really do have these needs. I am sure your Lordships would not want parent partnership services to be diverted from their prime function. That would be at the expense of the very people we have identified as needing advice and support.

This is a sensitive issue, which I believe is better suited to guidance when matters can be set out in detail. I hope, having heard my assurances that parent partnership services will act flexibly and sensitively and will not turn parents away out of hand, that Amendment No. 32 may also be withdrawn.

Turning to Amendment No. 36, I understand that it is meant to ensure that parents know about the various sources of professional advice open to them at the time the statement is issued. We believe that all parents with children who have special educational needs should have access to advice from a range of professions at any stage and not just when a statement is issued.

I believe I can be helpful to the noble Baroness, Lady Blatch. Although we think this amendment overlaps with the provisions of Clause 2(3), we agree it is essential that parents know where they can seek advice at the point when a statement, or proposed amended statement, is issued. I happily give an assurance that we will use the regulation-making powers provided for in Schedule 27 to the Education Act of 1996 to require LEAs to remind parents about the range of advice and information available from the parent partnership services at the time a proposed statement or proposed amended statement is being issued. I hope what I have said will meet the points raised by the noble Baroness.

Turning to the amendment of the noble Lord, Lord Lucas, this would give an absolute right to information and advice being given to anyone who may have a general query about special educational needs. That is not really the prime function of parent partnership services, as I indicated earlier. Their main focus must be on those who have a real need for help and support; that is, parents whose children have special educational needs. As I said earlier, we are seeking to avoid the parent partnership services being open to misuse by those asking rather more general educational questions about their children who may not fit into the category for whom the parent partnership services are designed to meet.

I recognise that in Committee the noble Lord, Lord Lucas, was concerned about parents who believe that their children have special educational needs having access to advice and support. At that stage, the Minister said that there are cases where the child's special educational needs may not have been recognised or identified. Of course, the needs of those parents must not be overlooked. Parent partnership services can help by supporting parents in pursuing the matter with the school or the LEA. I am sure that noble Lords will agree that we do not want to divert the services from their prime function. That would be at the expense of the people who need their advice and support. These issues are interesting and challenging, but I hope in the light of what I have said that the noble Lord will feel able to withdraw his amendment.

Photo of Lord Baker of Dorking Lord Baker of Dorking Conservative

My Lords, I am grateful to the Minister for the broadly sympathetic reply that he has given to these amendments. There is little between us. Clearly, one would like to see more on the face of the Bill, but I accept that codes and guidance are a way of proceeding in educational matters.

However, the parent partnership services should not, as the Minister said, advocate one school or another or one type of school or another; they should lay out the possible alternatives. My point is that when a child has severe disabilities, such as being blind, the parents should be aware of the special schools for the blind; if a child is deaf, the parents should be aware of the special schools for the deaf; and if a child is very severely physically disabled, the parents should be aware of the small number of schools that deal with severely physically disabled children. I hope that that specific recommendation of mine is taken on board in the guidance.

Several times this evening, in relation to a variety of matters, the Ministers have given reassurances that the concerns expressed on all sides of the House will be met in the revised code of practice and the revised guidelines. I express the hope that, if that is the case, they should be circulated well before Third Reading so that we can reflect upon them. It would be unfair if we do not see them before Third Reading, because so much of the Government's case is that there is no need to worry because our requirements will be catered for in the code of practice and in the guidelines. Clearly, we shall have another day on Report, after which there will be a gap before Third Reading, and so it should be possible to issue a draft of the guidance.

Photo of Lord Davies of Oldham Lord Davies of Oldham Lords in Waiting (Whips)

My Lords, the draft guidance is already available and has been subjected to wide consultation. If the noble Lord is saying that the final version should be ready before Third Reading, I am afraid that that would not be possible. I assume that he is talking about the broad lines of the draft.

Photo of Lord Baker of Dorking Lord Baker of Dorking Conservative

My Lords, the Minister has said that he will accept the broad intentions of what we say. I believe that all sides of the House are interested in the narrow acceptances. Much of what the Government have said tonight has inferred that we should not worry because this and that concern will be dealt with. As they have specifically said that, I believe that the Minister owes it to the House to say exactly how the guidance or the code will be modified. That is only fair, otherwise we shall drift off into the unknown. I ask him to reflect upon that by Third Reading. On that semi-undertaking from the Government, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Blatch Baroness Blatch Conservative 7:15 pm, 20th February 2001

moved Amendment No. 32:

Page 3, line 31, leave out ("with") and insert ("who has, or whose parents believe he may have").

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, I emphasise the point made by my noble friend on guidance. Constantly, we are told in response to these amendments that something will happen in guidance that will achieve what we want. If that is the case, we need to know that that is definitive advice and that what the Minister has said will appear in the guidance.

The guidance was in a fairly finished state and the draft code of practice was almost complete. There should be no reason why we should not have them before Third Reading, unless the Government have plans to alter them substantially.

The record books are littered with parents who have ended up at tribunals in regard to their children. They have spent months, and sadly even years, trying to convince someone that there is a problem. Eventually someone at a tribunal agrees that that is the case and action is taken. The Minister said that there are some parents who believe that their children have special educational needs when they do not. Of course, there are, but there are many parents who believe that their children have special educational needs when in fact they do.

No one is asking for an entitlement to an assessment, but this modest amendment simply says that where a parent is sufficiently concerned to go to the LEA and/or to the school saying, "I believe that my child has special educational needs"--it is likely that they will go to the teacher in the first instance--they should be given advice and information at that point.

The parent partnerships that the noble Lord believes will be the answer to everything will not be the answer to the sort of parent to whom this amendment is aimed. I come from a rural district in Cambridgeshire where there are isolated families who will not have access to committees and sub-committees. At the end of the day, parent partnerships will have an office building somewhere and people who sit on committees and they will not be the kind of people whom parents can approach. Parents want to be able to approach a school teacher to say, "I believe that my son/my daughter has a problem", and they will want information on where they can seek help. I believe that that should be an entitlement.

Lest the noble Lord believes that I am simply being negative, I, like my noble friend Lord Baker of Dorking, welcome the reassuring remarks made in regard to the other amendments, particularly Amendment No. 36. I thank the Minister for that.

I believe that parents should have an entitlement to advice and information. It should not be left to the happenstance of a parent partnership or some other formal committee picking up such matters by chance. If this Bill is about anything, it ought to be about responding to parents in that way. I beg to move.

Photo of Lord Davies of Oldham Lord Davies of Oldham Lords in Waiting (Whips)

My Lords, the House will recognise that in my earlier comments I sought to respond to those issues. In principle, we accept Amendment No. 32. That will establish the basis on which we finalise the guidance. The guidance will also be subject to debate in both Houses, so there will be parliamentary scrutiny of the final product. In relation to this amendment, I have indicated the role to be played by the parent partnerships.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, the Minister has not answered our particular point. When a parent asks for information there should be an obligation to respond positively by giving advice and information. Nothing that the noble Lord has said convinces me that that obligation is to be met under the Bill. I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 32) shall be agreed to?

Their Lordships divided: Contents, 57; Not-Contents, 146.

Division number 3 Adults Abused in Childhood — Special Educational Needs and Disability Bill [H.L.]

Aye: 55 Members of the House of Lords

No: 144 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

Photo of Lord Davies of Oldham Lord Davies of Oldham Lords in Waiting (Whips) 7:29 pm, 20th February 2001

My Lords, I beg to move that consideration on Report be now adjourned. In moving the Motion I suggest that the Report stage begin again not before 8.30 p.m.

Moved accordingly, and, on Question, Motion agreed to.