My Lords, the amendment seeks to amend Clause 1 of the Bill. The objective of Clause 1 is to secure that as far as possible all children with special educational needs or disabilities are educated in mainstream schools. I acknowledge and respect the Government's commitment to greater inclusion of disabled children. I acknowledge, respect and welcome the commitment they are making to include more disabled children in mainstream schools. There is no difference between us on that issue. But if inclusion is to be worth while and a success, it must be a positive experience for the child. If it proves to be yet another experience of rejection and failure, it will be worse than useless.
Other clauses of the Bill, and Section 317 of the 1996 Act, make provision for mainstream schools to move towards being able to provide the equipment and trained staff that they will need to cope effectively with children with special educational needs. That is a wholly desirable objective, but it will inevitably take time to achieve. In the mean time, there is a danger that children who are sent to mainstream schools which do not yet have the facilities may suffer. Sadly, the children who will suffer are likely to be the most vulnerable children. I shall return to that issue later.
Clause 1 of the Bill is very prescriptive. In effect it states that from the date on which the Bill comes into force schools and local education authorities will have less scope to place a child in the best available school for the child's needs. The proposed subsections are extremely inflexible. New Section 316(2) lays down in primary legislation that all children who do not have a statement must go to a mainstream school. There is no option. The only flexibility is that the local authority can start the process of assessment and statementing of that child and that it can be in a special school. I am not happy about the inflexibility of the clause but I reluctantly accept it and have not retabled my amendments on it.
Amendment No. 1 relates to new Section 316(3) which I believe contains the seeds of considerably greater potential damage. It lays down that even in the case of a child with a statement, he must go to a mainstream school. There are only two exceptions: unless it would be incompatible with his parents' wishes or with the satisfactory education of other children in the school. This subsection imposes a new and inflexible restriction on schools and LEAs. It prevents them taking into account local considerations or the welfare of the child when making a decision about his placement. If, as a result of professional and local knowledge, they were convinced that the child needed a special school, they could not send him to one unless his parents agreed or unless he were disruptive and therefore fell into the second category. I suggest that parents are not always the best judge of their children's needs. Some parents are humiliated by having a child at a special school. Some do not want to believe that their child has the degree of disability that he has.
There is a further problem about new Section 316(3). I am advised by a noble and learned friend on these Benches that the proposed new Section 316(3) would even prevent an LEA sending a statemented child to the special school mentioned in his statement unless the parents agree or he is disruptive.
I am grateful to the Minister for her two letters and for the full answers she gave on Report on these issues. However, the noble Baroness has not convinced me. There is nothing between us on the ultimate objective. However, I do not believe that this clause is the best way to achieve that objective.
The noble Baroness made the point that LEAs will have discretion under Schedule 27 to the 1996 Act. I am advised that if the new Section 316(3) were in place, there would be a conflict between it and Schedule 27: LEAs would no longer have that flexibility under Schedule 27.
The noble Baroness has stated repeatedly in debates that in the past LEAs have misused their discretion in relation to the "best interests of the child" to frustrate the Government's policy of inclusion. I know this to be a concern of the Special Educational Consortium. The dangers of this happening in the future are greatly exaggerated. The Government are preparing new guidelines: Ofsted will inspect the inclusion policies of schools. It does not seem likely that LEAs will be able to get away with cheating under those circumstances. We have to balance that risk against the risk of damage to vulnerable children arising from the Bill as drafted.
The children who will be hurt will not be the middle-class children with articulate and well-informed parents. The children who will suffer will be vulnerable children who do not have articulate and supportive parents who understand their needs and are able to argue their case. Those children are likely to be most in need of help. They will be damaged by being plunged into a large school that is not yet able to give them the support they need.
In many cases, such a child will end up sitting at the back of the class, not understanding what is being taught because he has fallen too far behind and traumatised by the social demands of a large and perhaps unfriendly group. He will experience failure and rejection yet again in his life--the failure and rejection to which he has learned to become accustomed in the family since he was born. That experience leads on almost automatically to truanting, exclusion, drugs, crime, unemployability and social exclusion.
If the proposed Section 316(3) proves to be a disaster, it will take primary legislation to change it. If those provisions were in guidelines, it would be a different matter. The amendment would introduce some flexibility, which could be regulated by guidelines or a code of conduct that would be checked by Ofsted. That is the route that the Government should take, in the best interests of all children. I beg to move.
My Lords, the noble Lord, Lord Northbourne, has made a powerful case, delivered emotionally and passionately. I support him wholeheartedly.
The primary aim of the Bill is to serve the best interests of the child with special educational needs. I have yet to hear a coherent argument against that from the Government. We have had this debate at each stage of the Bill and Members of all parties have argued in favour of serving the best interests of the child.
The amendment was included in a large group on Report. The noble Baroness, Lady Sharp, had some reservations about some of the amendments in that group, particularly the reference to adequate support in mainstream education to provide effectively for the special educational needs of the child, but there are no amendments to that effect today. However, she was unequivocal in support of the noble Lord, Lord Northbourne, and his wish to include a reference to the best interests of the child in the Bill. She said:
"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".--[Official Report, 20/2/01; col. 615.]
The noble Baroness has not tabled amendments on Third Reading, as she suggested she might, but the amendment tabled by the noble Lord, Lord Northbourne, has deservedly received support from all who have been involved in the Bill.
The best interests of the child should not be compromised in any way. Clause 1 has created confusion. The Minister has been hugely helpful since Report and has written a number of letters, copying them to all interested parties, but the issue of making a fundamental statement in the Bill of its main objective that the interests of the child should be served has not been addressed. That is the rationale for the Bill, even if there is no other. I wholeheartedly support the noble Lord, Lord Northbourne, in his attempt to get the words on the face of the Bill.
My Lords, I, too, support the amendment. It is obviously necessary and desirable. The trouble with Clause 1 is that subsection (3)(a) ignores the interests of the child by assuming that parents will always make the right decision. I speak as the parent of a severely mentally and physically handicapped child. Parents do not always make the right decision and cannot be relied on to do so. Some parents may even assume that their child with learning difficulties is normal. That is wishful thinking on their part. Some personal pride may be involved sometimes. They may want people to think that their child is fully normal when that is not the case.
Subsection (3)(b) should not be overlooked. It says that a child must be educated in a mainstream school unless that is incompatible with,
"the provision of efficient education for other children".
That incompatibility is rightly to be avoided, but the interests of the child should be considered as a separate issue when the decision has to be made.
On Report, I said that the needs of the child were paramount. Strangely, the Minister told me that I was out of touch. I was a little surprised, but not offended by her comment. The needs and the interests of the child are virtually synonymous. The interests of the child are paramount.
The proposition that I have put before your Lordships, following the noble Lord, Lord Northbourne, is reinforced by the 1989 United Nations Convention on the Rights of the Child. It is a massive document, but I need only trouble your Lordships with one or two brief references. Article 3 says:
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration".
That is another way of saying that the interests of the child are paramount. The Government are committed to that proposition because their predecessors, with the approval of Parliament, very properly supported the convention.
Article 18.1 says:
"State parties"-- that means governments--
"shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child".
That includes education. It then says:
"The best interests of the child will be their basic concern".
I hope that they will be the basic concern of the Government, too.
I could refer in detail to Articles 28 and 29, which deal with education, but there is no need to do so. The noble Lord, Lord Northbourne, and my noble friend Lady Blatch have put forward strong arguments. I hope that the Government will bear them in mind.
My Lords, perhaps the House will allow me to make a short intervention. I introduced the Private Member's Bill which was concerned with the amendments of the 1991 Act in the context of special educational needs. It was withdrawn on Report at the request of my noble friend Lady Blatch and subsumed in the 1996 Act. As it stands, this clause derogates from the spirit of the Private Member's Bill and from what was put into the 1996 Act.
From a practical point of view, as a lawyer who was concerned, as I was then, in many such cases, I can tell your Lordships that very often the best interests of the child are in conflict with the evidence given as to the wishes of parents or as to the provision of efficient education for other children. It is idle to pretend that that is not the case. In effect, that is what this draft asserts, and it is an inhumane nonsense.
Perhaps your Lordships will forgive me, but I have been involved in three other Bills in the Chamber and could not attend to this one. However, my noble friend Lady Blatch will tell the House that I took up this point with her at the outset. It stands out immediately as one of the most important defects in the Bill.
One has only to think of the position in which one found oneself when dealing with these cases in practice at the Bar. The LEA must consider the evidence of the experts--the educational psychologists and educational "this and that". If reports are produced which support A and B but a report from an expert states that certain recommendations are not in the interests of the child, that puts the local education authority in an impossible position and it also puts the courts in an impossible position because of the Children Act. The whole thing is an errant nonsense. I beg the Government to attend to this matter and to do the right thing by the children.
My Lords, my name has already been used in support of this amendment but it has been noted that it has not been added to the list of those who support the amendment. In Committee I argued strongly that we should include an extra caveat in Clause 1(3)(b). Having read the Bill, and taking what I consider to be a commonsense view of it, it seemed to me that the issue at the centre of this matter--that of inclusion--required that the best interests of the child should be considered.
After I had spoken out so clearly in Committee, I was somewhat disconcerted to discover that that was not the view of the consortium. Indeed, the consortium lobbied hard and put it to me that the phrase "the best interests of the child" had been abused by local education authorities, which pushed children into education that was not suitable for them.
I listened to what they had to say. Nevertheless, I returned on Report and argued that we should support the concept of "the best interests of the child". On that occasion I put forward three arguments. First, I said that I was, as the noble Lord, Lord Campbell of Alloway, mentioned, concerned that the two caveats that were included could be diametrically opposed. I said that we needed what one might call an "intermediating" caveat and that "the best interests of the child" was the appropriate one.
Secondly, I argued--here I picked up the argument of the noble Lord, Lord Baker; I was, and still am, in agreement with him--that we do not believe that sufficient resources are being put into financing special needs in schools. Therefore, if resources were insufficient, it was again necessary for the best interests of the child to be considered.
Lastly, I was worried by the issues raised by the noble Lord, Lord Northbourne, in relation to vulnerable children, many of whom would perhaps benefit from a special education. If there were to be a presumption in favour of mainstream schools, such children would be overwhelmed in those schools.
Yes, we have shifted our position, and there are three reasons why we have done so. First, we have received assurances from the Minister, which I hope she will repeat today, that the agenda behind these subsections is not to shut down special schools and special support units for those who need them. The interests of vulnerable children, referred to by the noble Lord, Lord Northbourne, are best served by a more sheltered educational environment.
Secondly, from the discussions that I have had with lawyers, I understand that this Bill is overridden by the Children Act and by Schedule 27 to the Education Act 1996, which deals with the statementing process and puts the best interests of the child at the forefront. Therefore, it is unnecessary for the issue of the best interests of the child to be included on the face of this Bill because--
My Lords, I should be obliged if the noble Baroness would give way for a moment. Yes, technically it is overridden. But cannot the noble Baroness see that a conflict arises and that that conflict creates a practical problem to which I rather ineffectively sought to refer? That is the difficulty.
My Lords, the advice that I have received is that there is no conflict. As I said, this Bill is overridden. We should also take into account the fact that this issue is overridden by the implications for the interests of the child as set out in the European Convention on Human Rights. Given the weight of legislation which points in this direction, from a totally practical point of view I still find it somewhat illogical that we cannot have the issue set out on the face of the Bill. However--this brings me to the final, and, so far as I am concerned, clinching, point--the advice that I have been given from the consortium and from the disabilities lobby is that this clause has been used as a let-out time and again by local education authorities and has been abused--
My Lords, I am grateful to the noble Baroness for giving way. Does she agree that some parts of the disability sector, particularly the RNIB, have supported quite strongly, and have appealed to us all to support so far as possible this afternoon, the best interests of the child and have urged us to ensure that that is included on the face of the Bill?
A considerable majority of those who were consulted in the consultation process that the Government undertook felt that the "needs of the child" caveat should be dropped. I cannot say that the decision to shift our ground has been easy because there are strong arguments on both sides that have to be balanced. The balance that we reached is that we are not going to support the amendment because the Government have given appropriate assurances--the relevant provision is already in place to ensure that the best interests of the child will be taken account of; that will be the paramount consideration when decisions are taken. There is not an unwritten agenda in the provisions to get rid of special schools.
My Lords, I had intended not to take part in this debate but I sat through the first part of it. I will not comment on the merits of the case because I have insufficient knowledge of it but I am bound to say that having spent 20 years in this place, I have never heard such a total recantation from a Front Bench spokesman in relation to an issue as important as this between Committee stage and Third Reading. Frankly, the complete change of view is bewildering.
My Lords, I thank the noble Lord, Lord Northbourne, for tabling the amendment and congratulate him on moving it so eloquently. I also thank the Minister for the letter that she sent me after the Bill's Report stage. Her letter dealt with some of the anxieties that I had raised in Committee and on Report.
I wish that I could be as grateful to the Liberal party. Few noble Lords spoke more eloquently in Committee about the best interests of the child than the noble Baroness, Lady Sharp. On Report, she surpassed herself and spoke with even greater eloquence about the best interests of the child. Why this sudden change? She said that she met some lobbyists who said that the proposal would be a major source of abuse and that if the amendment were agreed to, local education authorities would resist inclusion in schools. What evidence does she have to support that claim? I was a Member of Parliament for 30 years and in all of the cases involving special educational needs that I dealt with, the situation was always the other way round. Parents used to come to me and say, "I have not got my child into a special school". I did not come across one case in more than 30 years in the three constituencies that I represented in which the situation was the other way round; parents did not ask, "Could I please have my child sent to a mainstream school?".
I do not know what evidence persuaded the noble Baroness or how many cases she came across that convinced her that a major area of abuse was involved. I can only echo the words of the noble Lord, Lord Marsh. The House inevitably has the impression that the Government have whistled and that the Liberals have come to heel. We expected them to support this amendment on Third Reading. Was not it Lloyd George who referred to a person who had sat for so long on the fence that the iron had entered the soul? Such leadership on the part of the Liberal party is simply dither and wither. The noble Baroness has not shifted her position slightly; she has totally reversed it.
I want to explain why it is important to agree to the amendment. Those of us who raised this matter in Committee and on Report are particularly concerned about seriously disabled children; that is, those who, in the jargon, suffer from low-incidence disability. That refers to those who are hard of hearing to the extent of being deaf, those who are visually impaired to the extent of being blind, those who suffer from congenital diseases such as cerebral palsy or Asperger's syndrome and those who are very severely physically disabled. By any standard, those children need special education of one sort or another. In Committee and on Report, I set out the degree of support that such children need. It involves very expensive education. Those children tend to be statemented--nearly all of them are--and about half of them are provided for by special schools. It is the other half--those who are provided for by LEAs--with whom we are concerned.
I am not against inclusion so long as LEAs provide the support and help that those children need. Some LEAs can provide that, but I say to the Minister that there is a mass of evidence to show that many do not do so. She knows that that is the case. I suspect that the Minister will resist that consideration on two grounds. First, she will say that it is unnecessary to include in the Bill the phrase,
"the best interests of the child".
She is nodding, so I anticipate that that will be one of her arguments. She will point to the code, which is infused with the phrase. In that case, why cannot it be in the Bill? Page after page of the code is about the best interests of the child. However, the code is only a code, and it does not have a statutory obligation attached to it. Our approach--we have argued this before--is to give a statutory entitlement to the parents of a severely disabled child to take into account the best interests of that child. I cannot see why the Minister does not want to agree to the amendment. I hope that she will jump up and say, "Of course I accept the proposal", but I doubt whether she will. Her failure to do so conflicts with the rest of her policy.
We must secure a statutory obligation in the Bill to support the code. The Minister knows perfectly well that a code is only a code and that LEAs are expected to observe it. If they fail to do so, there is an elaborate procedure--it amounts to a great palaver--which eventually involves complaining to the Secretary of State. Most parents of disabled children would not want to take that on. The amendment would be an added protection to severely disabled children and their parents.
The second argument that the Minister will use is that used by the noble Baroness, Lady Sharp; namely, that abuse of the Bill will be involved. I do not think that that will happen. The procedures that the Minister will set up under the code, which has no statutory significance, will give parents the right to appeal and complain and to go to a "newer" person--an IPS or parental support adviser.
I fail to understand why the Minister cannot agree to the amendment. It is clear to many people in the disability lobby that it contains a necessary right that all children should have. I hope that we shall win today and that the Government will have a change of heart in this regard. I fail to see why they object to the proposal. The Minister knows as well as I do that we share the same interests; we both want to secure the best interests of the child. However, we want the amendment to be added to the Bill.
My Lords, I want to make one or two brief points about the position that we on these Benches are adopting.
We entered into discussions with the rest of the educational needs consortium about our position with an open mind and we did not expect to emerge in the position that we have adopted. Our minds were changed by open discussion. To be perfectly honest, that was rather tougher than what we are going through today. It is not pleasant to be told that you have got it wrong, even if one is told that by a knowledgeable group of people.
The noble Lord, Lord Baker, said that he had not come across people who said, "I do not want my child to be entered into a special school". My experience is the other way round. I do not claim to have had that experience for as long a period as the noble Lord mentioned and it may have been in relation to other disabilities. However, I suggest to him that we are arguing over inches; but such fights are always some of the dirtiest and nastiest, because one is in close, using elbows and teeth.
The fact is that we adopted our position in response to the arguments. My noble friend said that there were reservations and doubts in this context. This is probably one of the most honest positions that we have ever found ourselves adopting. It is uncomfortable. I hope that noble Lords appreciate that we did not adopt this position to get a short-term political advantage.
My Lords, "The best interests of the child count for nothing"; that is a pretty extraordinary statement to make, but that is exactly what the Bill currently maintains. If a local authority and an army of wonderful, well qualified and well intentioned advisers say that the best thing for a child is to go to a particular special school but the parents say no, the best interests of that child will count for nothing. This Bill is absolutely explicit about that. There can be as much as one wants in the code but it cannot stand against Section 316(3). There can be as much as one wants in Schedule 27 but Section 316(3) stands in its way. I find it an astonishing proposition that a piece of legislation allows the parent to say, "No, that is absolute", whatever the best interests of the child may be.
Complaint has been made that local authorities abused the earlier provision. Perhaps they did. If the best interests of the child are abused, then the tribunal is there to set it right. There are mechanisms in this Bill beyond the tribunal for settling such things by calm discussion. There are plenty of ways in which the best interests of the child can be enforced by someone other than the local education authority which may be dragging its heels because of financial interests.
To put ourselves in the position where the best interests of the child count for nothing and where a parental whim stands in the way of proper education of a child is breathtaking. I am not astonished that the Liberal Party espouses it. I have been involved in Bills before where the Liberal Party has sold its principles, such as they are, extremely cheaply to the Government. I suspect that we will see many other occasions when that happens.
I am saddened that the Government are taking this attitude. I had a greater regard for the attitude and sincerity of the Government in respect of educational needs and their care for the child. I know that they are plagued by the bad behaviour of local education authorities from time to time. We should not take that out on the child. What we do for the child should come first. If local education authorities behave badly, there must be a mechanism--and there is a mechanism in this Bill--for things to be set right. To provide no way out if parents behave badly and choose some course other than what is clearly best for their child--just in case authorities behave badly or because it may take a month or two to set things right through the tribunal--is truly regrettable. I hope that the noble Baroness has reconsidered and will find herself able to support the amendment.
The 1981 Act was to ensure that, where possible, a child with special educational needs should be educated in a mainstream school. I acknowledge that my noble friend Lord Northbourne has said that he is totally supportive of the principle of inclusion. The caveats in Section 2 were that a child, where possible, should be educated in a mainstream school provided that this was compatible with the efficient education of that child, the efficient education of other children and the efficient use of resources.
It was in the 1993 Act--piloted through by the noble Baroness, Lady Blatch, in response to the Private Member's Bill of the noble Lord, Lord Campbell of Alloway--that the wishes of the parents were introduced. When the noble Baroness, Lady Young, explained Clause 2 at the Second Reading of what became the 1981 Act, she said:
"The pace of integration will continue to be gradual but I have every hope that the provisions in this clause will give it added impetus, for in the longer term it is only through educating children together that society's attitudes towards the handicapped will be fundamentally changed". [Official Report 23/6/81; cols 980-981.]
The noble Baroness, Lady Sharp, has already spoken about the views of the Special Educational Consortium, which feels that there has been 20 years' experience rather than impetus. This caveat relating to the needs of the child has been a significant obstacle in obtaining a mainstream place. It has been used by LEAs as an excuse. Equally, it has been used by LEAs as an excuse to send children to special schools when parents preferred a mainstream placement. It contributes to the postcode lottery whereby it is much easier for a child in one LEA area to attend a mainstream school when their parents so wish it than in another. We all feel that the postcode lottery is very wrong. I stress that in no way is the Special Educational Consortium against special schools where appropriate and where the parents wish it. We all want the individual needs of children to be met more closely within the educational system.
Many large organisations are part of the Special Educational Consortium. Many of those organisations, for example Barnardo's, are concerned with the welfare of the child primarily even before education. They are convinced that the legal framework is already in place; that it is sufficiently clear; and that the caveat provides a sticking point. The raison d'etre of those organisations, surely, is the needs of the child.
I respect my noble friend Lord Northbourne and his knowledge and commitment. The problem is that special educational needs cover a hugely disparate group of people. The noble Baroness, Lady Blatch, knows more than anyone about special educational law. So do the noble Lords, Lord Baker of Dorking and Lord Campbell of Alloway. I hope that the Minister can convince my noble friend that his amendment is not necessary; that putting the needs of the child in that particular place is not a good thing; and that there is provision elsewhere. I hope that my noble friend will not insist upon his amendment.
My Lords, does the noble Baroness not agree that if there is a legal obligation on the face of the Bill to meet the best interests of the child, and that that can be challenged at the tribunal if there were abuse, there would be no scope for abuse? It would be a legal obligation to do no more or no less than meet the best interests of the child.
My Lords, we have heard some strong language and a great deal of laughter. I suggest that we pause for thought before we accept the strong words and the laughter at face value. The noble Lord, Lord Northbourne, spoke extremely well. The purpose of his amendment is admirable. I congratulate him and those who have made such an outstanding contribution to this Bill--the noble Baroness, Lady Blatch, and the noble Lords, Lord Baker of Dorking and Lord Renton. There have been significant contributions from people who know what they are talking about. Those contributions have been very helpful. I have not always agreed with them and I have often disagreed with the noble Baroness, Lady Blatch. The easy phrase,
"the best interests of the child", sounds great. Is it necessarily so? There has been incredulity expressed about how people can change their minds. In a democracy people can change their minds. How can one argue with the phrase,
"the best interests of the child"?
The noble Baroness, Lady Sharp, made a very brave speech. I disagree with all the mockery. It takes a lot of courage to come to this Chamber and say, "I have been persuaded. I was wrong. I have changed my mind". I admire what the noble Baroness said and what she has done.
The noble Baroness was persuaded by the Special Educational Consortium. The consortium consists of a group of people who have practically devoted their lives to disability. They know the problems intimately and are deeply concerned. They have briefed Members on both sides of the House in order to help with this Bill. If the consortium, in its considered view, believes that this amendment is not the right way forward, we should at least consider that view carefully, without the laughter, the mockery and the derision.
If the phrase,
"the best interests of the child", has been abused by local authorities and others, we should be extremely careful and pause for thought on this matter. The noble Lord, Lord Lucas, more or less said, "so be it". But if children are discriminated against by local authorities through the abuse of that phrase, then that should be a matter of serious concern to this House.
My conclusion is that there is no point in being upset and indignant about an amendment, attacking the Minister and the noble Baroness, Lady Sharp, as though they are doing something wrong. The whole thrust of this Bill is to help disabled children. It is an admirable Bill. It has been welcomed on all sides of the House. So those allegations that the Bill attacks disabled children are preposterous. I shall give way to the noble Lord.
My Lords, I thank the noble Lord for giving way. He talks about abuse of the phrase,
"in the interests of the child".
But if that happens, the courts have jurisdiction and have exercised that jurisdiction in many cases in which I have been concerned. If the phrase appears on the face of the Bill, parents have the prerogative to take the matter to the courts. That is why we want it on the face of the Bill.
My Lords, the noble Lord raises a fine technical legal point. Trust a barrister or solicitor to bring up such a point. In fact, when children's rights are abused, the parents are afraid of the law. They often do not go to the law and the abuse stands. It does not help to point out the fine legal definitions. The fact is that abuse takes place and it is up to us to stop it. If this amendment helps that abuse to take place, we should not accept it.
I do not condemn the amendment. I admire the noble Lord, Lord Northbourne. But I suggest that we should pause for thought and not mock the noble Baroness, Lady Sharp, for changing her mind.
My Lords, I want to begin by reiterating what the noble Baroness, Lady Darcy de Knayth, and my noble friend Lord Ashley of Stoke said. I greatly admire the contribution that the noble Lord, Lord Northbourne, makes to this House generally on this kind of issue, and in particular the contribution that he has made to the passage of this Bill through this House. I hugely respect the passion and conviction with which he spoke on this amendment. However, I am afraid that I shall disappoint both him and noble Lords on the Conservative Benches.
The Government will resist this amendment. We have given a huge amount of thought to this issue. It is not a matter we have simply entered into without considering the pros and cons. It is deeply unfair of the noble Lord, Lord Lucas, to suggest that the best interests of the child can go for nothing. Of course they cannot and of course they should not; nor do they.
The whole of this Bill is about the best interests of the child and meeting them. It is about making special educational needs provision better. It is about improving the tribunal system. It is about ensuring that more resources are available in our schools for children with disabilities or special educational needs.
My Lords, let me try to explain. It will be helpful if I can go through the issues without too many interruptions; it will make for a clearer exposition.
Amendment No. 1 is presented as a measure to ensure the right response for children who have statements. As I have already said, that is what we all want and I respect the motivation behind it. But it suggests by implication that the Government are not concerned about the interests of children with statements. Perhaps I can say to the noble Lords, Lord Baker and Lord Lucas, that I can understand that superficially it might appear contradictory for the Government, who have campaigned ceaselessly to raise standards for all children and especially those with special educational needs, to oppose this amendment. But the amendment reinstates a provision equivalent to the first caveat of the existing Section 316.
As was said by the noble Baronesses, Lady Sharp and Lady Darcy de Knayth, that particular caveat has been gravely abused. If we accepted the amendment, we believe that the practical impact on the ground would be that children who should and could benefit from inclusion will be prevented from gaining a mainstream place. My noble friend Lord Ashley of Stoke was absolutely right in making that clear.
Perhaps I can also say at this stage of the debate that I support my noble friend Lord Ashley in what he said on the Liberal Democrat position. It is grossly unfair when we go through debates in this House--it is a courteous institution--we listen to each other, we consider the arguments and we sometimes change our position, and then are derided for so doing. I have changed my position on a number of matters in relation to this Bill and brought forward concessions. That is how we operate in this House. It is unfortunate that a political party which changes its mind should be derided for so doing.
It is wrong to suggest that we are pursuing an aggressive inclusion policy that fails to safeguard children with SEN. Our proposals provide for both excellence and choice; they ensure that inclusion is based on sound foundations; they protect the interests of individual children with SEN and all pupils.
Perhaps I can reiterate what I have said on several earlier occasions during the passage of this Bill. Inclusion is not an agenda to close all special schools, or indeed special schools in general. We have signalled a vital and continuing role for that sector. Its overall size has remained more or less static since January 1996. It continues to take around 1.2 per cent of pupils who have special educational needs.
The needs of children who have statements are not jeopardised by dropping the first caveat of the existing Section 316. I explained on Report that it would be wrong for Section 316(3) to refer directly to the needs or best interests of the child because that could be abused. Equally, we firmly believe that safeguards exist elsewhere to protect children with statements.
Let me take one example of how the caveat has been abused. The Special Educational Consortium highlighted the case of a girl with Down's syndrome. Her inclusion at a primary school was extremely successful. But when she came to transfer to secondary school, the LEA directed her towards a special school, one which happened to be miles away. It claimed that the mainstream school could not cope with the needs of that child. The LEA did not consider what could be done to facilitate a mainstream case. That child's parents had to battle for a whole year to persuade the LEA that a mainstream school could cope. Eventually the child was welcomed into a mainstream school.
My Lords, does the noble Baroness not agree that that makes our point that the LEA did not meet the best interests of that child? At the end of the day the best interests of the child were met. If the provision was on the face of the Bill it would be unequivocal and there as a statement in support of the best interests of the child.
No, my Lords, I do not agree with that because the LEA sheltered behind this caveat. It took the wrong position about the best interests of the child against the primary school experience of that child and against the parents' wishes. I believe that everyone concerned now agrees that the mainstream can provide for some children's needs effectively. If the amendment were accepted, an LEA would be able to use it to argue--I return to the girl with Down's syndrome--that it was not in the best interests of the girl to attend a mainstream school because it could not cope with her. That was its claim. Not all parents are well placed to challenge such judgments. Vulnerable parents are often intimidated by professionals. That is a fact we should always bear in mind.
Our proposals require maintained schools and LEAs to justify why a child cannot be included. In future they will have to demonstrate that reasonable steps could not be taken to prevent inclusion being incompatible with the efficient education of others. When parents object to mainstream provision or want a special school place, the duty imposed by Section 316 to educate their child in the mainstream is immediately lifted. Clause 1 does not make it harder to gain a place in a special school, whether maintained or non-maintained.
I return to the position mentioned by the noble Baronesses, Lady Sharp and Lady Darcy de Knayth, of the Special Educational Consortium. The position is clear. As my noble friend Lord Ashley of Stoke stated, the SEC believes that the amendment is unnecessary. It feels that the retention of a provision similar to the existing first caveat would be open to further misuse. In Committee the Opposition were keen to highlight what the NUT had to say. Perhaps I may draw the attention of noble Lords to the NUT's briefing for Report, which stated:
"The Union believes that the proposal to strengthen the right of a child with special educational needs to a place in mainstream education strikes the right balance ... The Union believes that if these proposals are weakened or removed the process of inclusion could be set in reverse".
Reference has been made to the RNIB. The RNIB has been alone among all the disability groups in being concerned about this matter. I understand that it has now also changed its position. As I understand it, it wants reassurances, which I have repeatedly given, that the needs of the child are considered, but it no longer seeks reinstatement of that phrase on the face of the Bill. I hope that that is helpful.
My Lords, perhaps there is a misunderstanding. I received that information from the Special Educational Consortium, which I understand has been in touch with the RNIB about that matter. It is again unfortunate that notes of derision should enter into a debate on an important matter, and one which we can all discuss.
My Lords, perhaps I may continue, otherwise we shall never get through what is an important day of discussion. Let me be absolutely clear and review again the safeguards that protect the interests of individual children who have statements. The whole point of the statementing process is to ensure that children receive the provision which their learning difficulties call for.
Statements specify the provision to be made. LEAs are then under a duty to arrange for provision to be made. We intend to enhance the guidance in the revised SEN code of practice to make clear that a statement could describe clearly all a child's special educational needs in full; set out the main objectives that the special educational provision aims to meet; specify clearly the provision required to meet each of the child's needs and describe the arrangements for setting short-term objectives for the child and any special arrangements for the annual review of the statement.
It is important that we look at the 1996 Act, which the Bill seeks to amend. That Act has, at its heart, the needs of the child. Section 1 sits alongside the rest of Part IV and should not be read in isolation. Perhaps at this point I should mention to the noble Lord, Lord Renton, something which I said at Second Reading, as I do not think he was able to be present. The noble Lord mentioned the UN Convention on the Rights of the Child. We believe that the changes to the SEN framework, of which the Bill forms a part, will ensure that the framework fully complies with the convention. Indeed, that is the legal advice we have been given. The noble Lord shakes his head. However, I want to give him that reassurance. Lawyers with expertise in this area have provided us with that reassurance.
I return to Schedule 27 to the 1996 Act, which ensures that the individual needs of the child are taken into account in deciding whether to name a parent's choice of maintained school. Section 9 sets out 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. It enables local education authorities to safeguard a child's interest if they consider the provision suggested by a child's parents is incompatible with their efficient education or training.
Where parents believe that an authority is providing inappropriate or insufficient provision or have not named a school that can meet the needs of their child, they have the right of redress to the SEN tribunal. Her Majesty's Chief Inspector of Schools has been asked to monitor the new inclusion framework. Once confirmed, that will help prevent any potential abuses and ensure that the needs of the child are safeguarded. Perhaps I may say to the noble Lord, Lord Northbourne, that I thought he was being unduly pessimistic about the matter.
I also indicated on Report that the statutory guidance on the new inclusion framework will underline the need to ensure that the interests of individual children with SEN are protected and will set out the safeguards I have again explained today. We believe that our proposals strike the right balance and protect the interests of children. We therefore do not believe that it would be right to reinsert provisions that might be seen as equivalent to the old first caveat. I very much hope--
My Lords, I thank the noble Baroness for giving way. The nub of her argument is that this could be a loophole for local education authorities to abuse the purpose of the Act. She quoted one example of Down's syndrome. With all the resources available to her department, perhaps I may ask how many other cases she or her department know about. Every Member of Parliament, including her ministerial colleague who was a Member of Parliament, will assure her that they know of dozens if not scores of cases in which LEAs have denied the best interests of the child by insisting that the child should go to a mainstream school where the provision is inadequate and when they should have gone to a special school. The abuse is mostly the other way.
My Lords, the comments of the noble Lord, Lord Baker, are not consistent with the consultation process and its outcome. We have consulted widely. We consulted those who represent the parents of children with special educational needs and statements. I cannot give a specific number; I do not know precisely how many cases there are. However, I know that those who have expertise in this area, those who have been affected by the previous legislation, take a different view from the Conservative Opposition. The noble Lord, Lord Baker, also referred to my noble friend Lord Davies of Oldham. He did say that he had had letters in the past from parents who wanted a special school place, but he has also said to me on more than one occasion that he believes that there is a change in what many parents want; that more and more parents want their children to be educated in a mainstream school if possible, and if the child can get a decent education.
The noble Lord, Lord Northbourne, provided some examples of children sitting at the back of the class, not benefiting, being excluded and getting into trouble with the law, and so on. The whole statementing process is designed to ensure that children get the support that their SEN calls for.
Section 317 requires governors at maintained schools to use their best endeavours to provide the special educational provision that children need. That means that children with SEN certainly should not be sitting at the back of the class, languishing and having their needs overlooked. I should be as concerned as he is if that happened. I do not believe that that will happen. Everything that we are putting in place, including substantial additional funding and extra training for teachers, should prevent that happening.
In the light of the reassurance that I have been able to give, I hope that the noble Lord will feel able to withdraw his amendment.
My Lords, before the Minister sits down, I have a short but important question. I want to ask the noble Baroness, as a Minister at the Dispatch Box, whether it is her understanding that if the LEA makes a wrong decision in the interest of the child, the tribunal may set it aside and quash it. If that is her understanding, what is the objection to including it on the face of the statute? It is a very simple question: I do not understand the objection.
My Lords, I have already said that there are many parents who do not have the skills and knowledge of the law of the noble Lord, Lord Campbell of Alloway. To be put in a position where they have to fight an LEA in this way is very difficult. Let me end by reiterating yet again that the Bill has at its centre--just as the 1996 Act did--the needs of the child. That is why the amendment is not necessary.
My Lords, I am most grateful to the Minister, but, with the greatest of respect, she has not said anything new. I should like to try to be positive. We all want to achieve the same benefits for children. The problem is that many of us believe that the Bill does not say what we want to achieve. It is a badly drafted Bill, or, if it is not badly drafted, something is wrong with it. Sections 316(2) and (3) use the word "must". Several noble Lords have said, "But that is overruled by this and that is overruled by Section 27". I do not understand how the word "must" can be overruled in law. Perhaps someone can explain that to me.
The Bill must be made to say what we all want; the Bill must be made to say what the Government want. I accept that the Government want what the Minister has said they want, but the Bill does not say so. I recognise that my amendment is by no means the only way in which the problem could be solved, but my amendment is before the House. I believe that there are a number of your Lordships who would like to express their feelings on this subject by voting. I want to test the opinion of the House.
My Lords, this amendment is similar to one that I moved on Report. All I wanted then and all I want now from the Minister is a simple dictionary definition of the phrase, "education in a mainstream school". I did not receive a reply at the previous stage, but I hope to receive one now. I beg to move.
My Lords, the noble Lord, Lord Lucas, seeks to define what constitutes mainstream schooling to ensure that dual placements are permitted. I have given many assurances that the existing arrangements, and indeed Clause 1 of the Bill, do allow for dual placements. The flexibility is there for children to be educated at a mainstream school, but to receive part of their education at another school.
I do not know whether I can give the noble Lord a dictionary definition of the term, but I believe that a mainstream school is any school which does not have special provisions for those with special educational needs. However, this amendment states that a child should be considered to be receiving education in a mainstream school if he is registered at that school and attends regularly. In return, perhaps the noble Lord could say what "regularly" means. The problem is that that term is awfully imprecise. It could be said that a child attends a school regularly if he does so only once a term, so long as he does that on a regular basis. This could be abused and could provide a significant loophole to block real inclusion. As the noble Lord knows, we are trying to encourage greater inclusion where parents want it.
Noble Lords will remember the discussion we had on Report concerning the term "registered". We oppose the use of the term "registered" because it would allow a child to be registered at one school but taught at a totally different school. That is not inclusion. As we argued then, we believe that it is right for the vast majority of children with special educational needs to be educated in mainstream schools. We also believe that it is common sense for a child normally only to be considered as being educated in a mainstream school if he spends the majority of his time in that mainstream school.
I have already promised 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. I should like now, again, to give an assurance that this Bill, as it stands, allows for dual placements. I hope that, having heard those assurances, the noble Lord will feel able to withdraw his amendment.
My Lords, it is clear that I am not going to be given what I want. It has never disturbed me if I cannot explain the exact meaning of my amendments, but if the Government cannot explain the exact meaning of their own Bill, that is not to be encouraged. I beg leave to withdraw the amendment.
My Lords, unfortunately, the noble Lord, Lord Northbourne, has been called away and thus is not able to move the amendment. As my name has been added to it, I shall do so on his behalf. I have given notice that I shall speak at the same time to Amendment No. 5.
I have brought back Amendment No. 5 for two reasons but, first, I should like to thank the noble Baroness for the way in which her staff have made themselves available to talk to my noble friend Lord Pearson of Rannoch, who has expressed concern about this matter. Unfortunately, he is out of the country. My noble friend sought a letter from the noble Baroness, Lady Blackstone, which has been forthcoming. In the absence of my noble friend, I should now like to record formally the contents of that letter in Hansard for Pepper v. Hart purposes in the future.
Secondly, and more disturbing, is the legal advice I have received as a result of our previous debate in which we argued that the interests of the child should be made paramount in the wording of the Bill. We believe that, despite what the noble Baroness said about this clause and how it interacts with section 316 of the 1996 Act, the conflict has not been resolved. That is why my noble friend Lord Pearson of Rannoch said that he would be grateful to receive a letter from the noble Baroness to confirm that, while the Bill will make it easier for children with special needs to attend a mainstream school, it will also not make it any more difficult for statemented children with special educational needs to be supported by local education authorities at independent schools, if that is what their parents want and, of course, if that would meet appropriately the special educational needs of the child.
The noble Baroness sent a letter confirming that. For the purposes of expressing my aims in these amendments, I shall repeat the main body of the letter. It states:
"Clause 1 of the Bill makes it clear that section 316 does not affect the requirement in section 348 of the Education Act 1996 that local education authorities should fund the placement of children with special educational needs at non-maintained schools if those schools are named in their statements, or if the authority believe that provision in a non-maintained school is necessary and the particular school is appropriate."
"If a parent wants their child to attend an independent school, the duty to educate that child in a mainstream school imposed by section 316(3) is immediately lifted. If the LEA agrees that the child should be educated in a non-maintained school and name that school in the child's statement, the LEA will, under section 348, have to pay for that school. Nothing in section 316A is capable of affecting this. Section 316A qualifies section 316. It does not impose 'independent' rights or duties to the effect that a child can only be educated in a non-maintained school if the LEA is not funding that placement. It does not affect the operation of section 348 and there is therefore no need to make provision to that effect."
My Lords, it is important that that is put on the record and that it is confirmed by the Minister as the Government's view.
I want to move on to the more disturbing advice that I have. My noble friend Lord Campbell of Alloway, who is not in his place, has come to the same view, and he has more legal qualifications than I do. I am very much in the hands of others to advise me. If, as the noble Baroness has said, Section 348 will not be affected, why is Section 316A part of it, if the cost will be met otherwise than by a local education authority? What are the conditions under which that provision would apply if the local authority believes that it is in the best interests of the child, it is consistent with the wishes of the parent and the educational needs of the child, that an independent place is sought and the LEA is free to pay for that place? There is no getting away from the words in the Bill. They are either not necessary, or they are necessary because of the situation that the Government envisage, and the LEA would like to send a child to an independent school. Clause 1 states that
"'mainstream school' means any school other than ... a special school, or ... an independent school which is not ... a city technology college ... a city college for the technology of the arts, or ... a city academy. ... Section 316 does not prevent a child from being educated in ... an independent school which is not a mainstream school, or ... a school approved under section 342, if the cost is met otherwise than by a local education authority."
In other words, the local education authority is not permitted to spend money on a place in an independent special school. What will prevent a local authority from paying for a place in an independent school, especially if that is what the LEA wishes to do? The position is totally baffling. I sought advice from an eminent QC who said that the Government have it wrong and that my interpretation of the Bill and that of my noble friend Lord Pearson of Rannoch is right. There is a serious conflict. The noble Lords on the Liberal Democrat Benches will almost certainly hold the Government's hand in the Division Lobby, so the chances of beginning to resolve the matter in favour of the legal advice that I have is pretty remote. At least we could have the fall-back position of including these words in the Bill, so that a legal challenge could be successful in court. I beg to move.
My Lords, I can be reasonably brief in response to Amendment No. 3 because the noble Baroness, Lady Blatch, read out the letter accurately, which has now been put on the record. That was largely the substance of the reply that I would have given, so she has already extracted that from the letter, dated
We have visited these matters before, and she will know our anxiety about the amendment and why we oppose it. Amendment No. 3 would fatally undermine Clause 1 and new Section 316. The amendment would have virtually the same effect as including independent schools, including those approved to cater for children with SEN and non-maintained special schools in the definition of mainstream schools. Clearly, they are far from what we mean by mainstream school in the context of Clause 1. How can we say that a child is being educated in a mainstream school as part of the general inclusive perspective of the legislation, if he is sent to a non-maintained special school? Clearly, that would not be inclusion. The reason that we are resisting the amendment is because it would produce that effect.
The rest of the issues raised by the noble Baroness were largely answered by her when she quoted the letter from my noble friend the Minister. I can reassure the noble Baroness, Lady Blatch, that if parents want their child to attend an independent school, the duty to educate that child in a mainstream school imposed by Section 316(3) is immediately lifted. If the LEA agrees that the child should be educated in a non-maintained school and names the school in the child statement, under Section 348, the LEA will have to pay for that school. Nothing in Section 316A can affect that. That section qualifies Section 316. It does not impose independent rights or duties to the effect that a child can be educated only in a non-maintained school if the LEA is not funding that placement. The provision does not affect the operation of Section 348.
I hope that I have succeeded in clarifying the issues raised by Amendment No. 3, which was grouped with Amendment No. 5 by the noble Baroness. Amendment No. 5 has rather more substance. I know the intention behind the amendment because we have had these debates before. I shall touch briefly on its technical deficiencies, not that that is the main thrust of my argument. The amendment refers to "disproportionate expenditure", which is a phrase that does not have much meaning in legislation relevant to SEN. When it deals with financial matters, it is generally phrased in terms of "efficient use of resources" and "unreasonable public expenditure". Even if we were to accept the amendment, it would be of doubtful use in construing provisions couched in those terms.
When looking at what the amendment is designed to achieve, I believe that LEAs must be allowed 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, a more expensive alternative. Provided that the LEA can meet the child's needs in full at a more reasonable cost, surely it should be free to do so. LEAs are not required to make Utopian provision for some children but are obliged to make suitable provision for all children with SEN who need it.
If the amendment's intention is to ensure that LEAs do not simply refuse a parental preference on the grounds that the place was more expensive than comparable provision, it is not needed. Under Section 27 of the Education Act 1996, which the noble Baroness knows very well indeed, a parent is free to express a preference for any maintained school, including a special school. Parents can also make representations for any non-maintained school to be named in their child's statement. LEAs must comply with a parental preference unless the school is unsuitable to the child's age, ability, aptitude or special educational needs, or the placement would be incompatible with the efficient education of the other children with whom the child would be educated, or with the efficient use of resources.
So cost is clearly not the only factor. The cost of an individual placement, compared with other appropriate placements, will be one of the elements when considering whether the placement represents an efficient use of resources--but only one. That ensures that an LEA does not simply refuse a parent's preferred choice of school because it is more expensive than other types of provision. If a school is unsuitable for a child, an LEA could not make it suitable by demonstrating that it was cheaper than the other options.
Where a child's needs can be appropriately and effectively supported in more than one type of provision--for example, either in a mainstream school or in a maintained or non-maintained special school--it is important that we listen to what parents want.
It is important also that the cost implications are considered. We believe that it is right that LEAs should seek to use their resources efficiently. Whether determining a parental preference made in accordance with Schedule 27 or the representations made by parents for an independent school, cost must be considered. If it were not, the interests of all children could be jeopardised. Excessive or inappropriate expenditure on one child could come only at the expense of the learning opportunities of other children.
I should point out also that LEAs seeking to make an efficient use of resources do not necessarily have to settle on the least expensive provision available 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 therefore, of course, less funding, in the longer term. It is right that LEAs should be able to consider each case on its merits.
There are safeguards where parents feel that a local education authority may be abusing the system and refusing even to consider a more expensive option. Where they consider the content of a statement of special educational needs to be unacceptable, then they may appeal to the SEN tribunal. The Secretary of State for Education and Employment may investigate other complaints about possible unreasonableness or failure to act in accordance with a statutory duty. We would hope, however, that the new arrangements for resolving disputes between parents and local authorities will help to ensure that practical solutions acceptable to all parties are reached informally and quickly.
This amendment, therefore, would impose a quite unnecessary straitjacket on LEAs and I hope that in the light of what I have said, the noble Baroness, Lady Blatch, will feel able to withdraw the amendment.
My Lords, it is difficult to come back on this amendment without reminding the House that we have just voted against including, as a primary aim of the Bill, the best interests of the child. The whole import behind my amendment and that tabled by the noble Lord, Lord Northbourne, is to say that local education authorities should be entirely free--with the criteria in the Bill that it must be consistent with the educational needs of the child and the wishes of the parent--to make appropriate provision, whether in the independent or mainstream sector.
Teachers and head teachers have already said that they want to achieve the Government's aim in this Bill. In moving these amendments, my intention is that we should not give way to the dogmatists one way or the other--those people who believe that there should be more specialist, special schools in the independent sector or those who believe that there should be more inclusion in mainstream schools. We should always be interested in what is consistent with the educational needs of the child.
The noble Lord did not answer the specific question which I asked him to address. What is the purpose of the words,
"if the cost is met otherwise than by a local education authority"?
What situation is that intended to address?
My Lords, the point of that is to allow parents to send their children to an independent or a non-maintained specialist school when the LEA does not agree that they should go there. It leaves that position clear and that is the point of it.
My Lords, there is nothing in law that prevents parents from sending their children, with or without special needs, to an independent school. We do not live in that kind of state. In this country, parents are allowed to make a free choice. There is absolutely nothing in the law, past or present, to prevent parents, trustees or third parties, if they are paying, from doing that.
My Lords, first, we are in danger of going back to a Committee discussion on this Bill. The point that I was seeking to make is that without Section 316A(1), Section 316 would prevent that. So Section 316A is needed to ensure that it does not obstruct the rights of parents, which is exactly the point which the noble Baroness was seeking to make.
My Lords, that has cleared in my mind what I should do. We live in a country which allows any parents in the land to send their child to any school they wish. If that school is not in the maintained sector, they are free to pay for an independent place without an LEA preventing that. Trustees and third parties are also free to do that. The Government appear to have included in the statute a provision which prevents parents from doing that and they are now devising another caveat which allows parents to do that. I wish to test the opinion of the House.
My Lords, in moving Amendment No. 4, I should also like to speak to Amendments Nos. 6, 8, 12, 13, 43 and 45 to 68. They respond to commitments that we gave on Report.
Amendment No. 4 responds to an amendment moved by the noble Lord, Lord Addington, on Report. The noble Lord sought to ensure that the guidance referred to at Section 316A(8) includes advice on the reasonable steps referred to at Section 316A (5) and (6). The guidance will explain the kinds of reasonable steps that maintained schools and LEAs could need to consider in order to prevent inclusion being incompatible with the efficient education of others.
Amendments Nos. 6, 43 and 45 to 68 all relate to changes to Schedule 27 to the 1996 Education Act brought about by Amendment No. 152 tabled in my name on Report. Amendments Nos. 6, 43 and 65 to 68 are technical and consequential. Amendments Nos. 45 to 64 respond positively to further discussions that we have had with the noble Baroness, Lady Darcy de Knayth, about the consequences of the changes made on Report.
The amendments require LEAs to follow the procedures in Schedule 27 to the 1996 Act, as amended by Schedule 1 of the Bill, whenever they propose changes to a child's statement. This will ensure that changes cannot be made without parents first having a right to a meeting with an officer of the LEA or, in cases where changes are proposed to Part 4 of their child's statement, typically in relation to the school named in the statement, to express a preference for a maintained school. They also cut down on the paperwork that would have been involved for LEAs, by not requiring them to issue a proposed amended statement following a periodic review.
Amendment No. 8 responds to an amendment moved by the noble Baroness, Lady Blatch. It amends Clause 5 to make clear that where an LEA concedes the parents' wishes on an appeal to the SEN tribunal, this should not be classed as a withdrawn case but as a case "resolved in the parent's favour". As I indicated on Report, we were considering how the clause might be amended to give this effect. I hope that we have fully met that request. The government amendment now being put forward will replace the word "withdrawn" with,
"determined in favour of the appellant".
The tribunal will not be required to make an order to this effect.
Amendments Nos. 12 and 13 fulfil the commitments that I gave on Report to extend the ability to request an assessment of a child's special educational needs to providers of relevant nursery education covered by the early years development plans. The responsible body for such providers will be whoever is responsible for the management of the provider in question. Nursery education at maintained nursery schools is not covered by the amendment, as it is already covered under Clause 8.
Amendment No. 13 also fulfils the commitment that I made on Report to add head teachers to the list of responsible bodies who can request assessments on behalf of schools.
These amendments will ensure that all those who make provision for children with special educational needs will have a common right to request an assessment where they believe a child to require it and LEAs will have a duty to consider all such requests. I beg to move.
My Lords, I, too, thank the noble Baroness for responding so positively to some of our concerns. Perhaps she will be able clarify some outstanding questions on the early years provisions. I hope that my understanding is right and that the points are covered.
The first point relates to bodies in receipt of a grant. Will a provider of relevant nursery education be able to request a statutory assessment for a child under three, although a nursery education grant has not been received for a particular child? For example, child minders are not in receipt of a nursery education grant and may not all receive finance under an LEA's early years childcare development plan. Will the amendment allow them to request a statutory assessment of needs? If early years settings have been excluded, it would be good to know the rationale behind that. My understanding is that all early years settings are included. Is that with or without receipt of a government grant?
My Lords, Amendment No. 48 seems to have been included for the sole purpose of infuriating me. Its only other function is to make the legislation less clear. Under the schedule as presently drafted, sub-paragraphs (1) and (2) of new paragraph 2 contain the reference:
"Before making a statement, a local education authority shall", do various things,
"If, following a statutory review, a local education authority propose to amend", etc; and sub-paragraph (3) reads:
"But sub-paragraphs (1) and (2) are subject to sub-paragraphs (4) and (5).
That is not the most beautiful of drafting, but it is clear. Sub-paragraph (3) is now to be amended to exclude the reference to sub-paragraphs (1) and (2) and to read: "That is subject to sub-paragraphs (4) and (5)".
But what is "that"? "That" is usually taken to apply to a singular object, but we have two sub-paragraphs immediately preceding sub-paragraph (3). Does "that" mean sub-paragraph (2); or does it mean sub-paragraph (1)? Or does it mean both? It is inexact. It does not say what it means. I do not know how anyone interpreting the Bill is to begin to find out what "that" is.
The purpose of drafting, although it may not be in the ordinary English that we use, is to be exact. It is meant to be clear to someone reading the Bill exactly what is intended. All Amendment No. 48 does is make the intent unclear. I hope that the Minister can justify this change. I do not really see how she can. If the intention of the amendment is "But sub-paragraph (2) is subject to sub-paragraphs (4) and (5)", why not say so? If it means something else, how is anyone supposed to know that?
My Lords, I do not know whether to welcome the amendments before the noble Baroness explains that point. I warmly welcome Amendments Nos. 45 to 64, including, for the moment, Amendment No. 48. The Independent Panel for Special Education Advice (IPSEA), of which I am a member, will be delighted with them. I thank the Minister for listening and for reflecting further on the points raised and for coming up with even more. I should particularly like to thank the officials in her department for the extraordinary amount of help and co-operation that they have given on these amendments. It is an immensely complex web of amendments. According to IPSEA's original suggestion, the provision for amending a statement and the provision for amending a statement following a fresh assessment would have been set out separately in the Bill. Possibly, the noble Lord, Lord Lucas, would have been happier. However, I look forward to the Minister's explanation and I thank her and her department very much indeed.
My Lords, I am grateful to the noble Lord, Lord Addington, and to the noble Baroness, Lady Darcy de Knayth, for their remarks. We have tried to reflect their concerns in the amendments. I am glad that they are able to welcome them.
In answer to the noble Baroness, Lady Blatch, yes, the provision will apply to all early settings, regardless of whether they have a grant.
Turning to the point made by the noble Lord, Lord Lucas, the last thing I want to do is to infuriate him. That would be a great mistake. I want to try to please him wherever possible. I agree with his remark that drafting should always be exact.
As I understand it, Amendment No. 48 simply removes the reference to statutory reviews, leaving new paragraph 2 to concentrate on the proposed first statements. I hope that that answers the noble Lord's question and that he will accept that we are only doing a bit of tidying up here and that we are not attempting in any way to irritate him or to make the provision less easy to follow.
moved Amendment No. 7:
Page 4, line 17, at end insert--
("( ) "Independent persons", as required in subsection (3) above, means persons with no previous connection with the parents and the child, nor of any of the authorities involved in the dispute, but shall include persons of knowledge and experience relevant to the special educational needs of the child.").
My Lords, with this amendment we return to a theme that has been discussed previously, but one about which I feel strongly; namely, the independence of anyone who is to hear an appeal. It should not be accepted as read that a person hearing an appeal would be independent in terms of their connections with both sides of the appeal, those prosecuting and those hearing it. It is important that the person should not only be deemed to be independent, but that there is a requirement on the face of the Bill to that effect. The wording of my amendment may not be perfect, but there should be an obligation in law, on the face of the statute, for a person in that situation to be independent. I beg to move.
My Lords, I should like to make a few points about this amendment. I very much support what my noble friend Lady Blatch said about the importance of an independent supporter. The interesting passages on the parent partnership services on pages 10 and 11 of the code of practice refer to the fact that a new arrangement is due to be introduced. I should be grateful to know when the Minister envisages that sort of arrangement will be established.
Part and parcel of that arrangement will be the appointment of an "independent parental supporter". There is a small section on this in the code of practice at page 12. I fully support the appointment of this sort of person; it is, indeed, a very interesting appointment. It means that access to an independent parental supporter should be made available to all families who need one; for example, to support parents meetings or reviews and to provide a wide range of information on special educational needs--an aim that I fully support. It also says that the role of the independent parental supporter may be particularly helpful in enabling parents to make their contribution to the assessment in the statement and that it will help them understand the implications of any objective set within the assessment process.
So here we have an independent person who will have no connection with the LEA or the child's school, someone who will in fact act as a sort of parent's friend. I am sure that that is welcomed on all sides of the House. The code goes on to say that that person should be fully informed about local and national policies. Can the Minister tell us how many people are likely to be appointed to this role? Clearly, it will have to involve more than one LEA, because 20 per cent of children are now registered as having special educational needs. That is an enormous proportion, but it is the average for LEAs. I imagine that there would have to be a team of independent parental supporters. Can the noble Baroness give me some idea of how many she envisages will be needed after the system comes into operation?
My Lords, I have to confess that I am a little disappointed that we have returned yet again to this issue. I believe that our proposals to set up informal arrangements to resolve disputes have received widespread support. I am grateful to the noble Lord, Lord Baker, for his support for this set of new arrangements. I should point out to him that the statutory parent partnerships will be started in September 2001, which is quite soon. However, there are already a great many informal, non-statutory systems in existence.
The amendment calls for the independent person to have,
"no previous connection with the parents and the child, nor of any of the authorities involved in the dispute".
This means that LEAs will have continually to seek out and train new independent persons, which I do not believe would be terribly desirable. The role of the independent person is to try to move discussion along and help those in dispute to reach an agreement that is acceptable to everyone. It is the parties, not the facilitator, who decide on the terms of the agreement.
Facilitating dispute resolution is all about chairing a meeting, managing the process, not the content, and encouraging people to express their views, as well as ensuring that everyone has his or her say in the matter. The facilitator does not determine who is right or wrong. Although many parents see these skills as being more important than the independence of the individual or his or her expertise in SEN, independent research carried out by the department indicated that they also want an independent third party involved. So parents want independence. We believe that our proposals will deliver that aim.
The minimum standards in the revised code of practice will set out that the independent person must have no role in the decision taken about a particular child's case; and that he or she is unbiased and has the appropriate skills, knowledge and expertise, including an understanding of SEN. Guidance will also emphasise that the independent persons must be acceptable to all the parties involved. I believe that that is the real thinking behind the amendment, and that that is what the noble Baroness is seeking.
However, if the noble Baroness looks at Clause 3 carefully, she will see that it places a duty on LEAs to make arrangements for avoiding or resolving disputes. That means that LEAs do not have to carry out dispute resolution themselves. We are encouraging them to work with other organisations in providing this sort of dispute resolution. We know that many LEAs are actively thinking about this in anticipation of the new duty. The noble Lord, Lord Baker, asked how many people we thought would need to be appointed. At present, the average number of independent parental supporters per LEA is about 10.
The noble Baroness, Lady Blatch, also argued that independence will not be a defence against partiality. I argue that no one can legislate against an individual's partiality. We are all entitled to our own views; but what we must not do in these circumstances is to allow our personal prejudices to influence our professional roles. That is what we expect from anyone in public service. Should we now assume, from what the noble Baroness has said, that all these people bring their personal views to work with them? I do not believe that they do. They are professional people. I am sure that they leave those views behind. In the light of what I have said, I hope that the noble Baroness will feel--
My Lords, before the Minister concludes, I should like to thank her for what she has just said and for giving us such helpful information. I require some further information, but perhaps the noble Baroness could respond to me in writing. We are talking about important people. I should like further information as to who appoints them, who will employ them, and so on.
My Lords, the noble Baroness was helpful with that response. Again, it was slightly more unequivocal this time than it was previously. The noble Baroness picked up a point from what I said during the last stage of the Bill. I refer to the issue of partiality. You can have someone who is independent but you can also have someone who is partial. The example that I should like to put forward is that you could have someone who is publicly known as a fiercely strong supporter of integration at all costs. I have certainly received at least one missive from a part of the special needs sector saying, "Please support the eventual abolition of independence of specialist schools". Therefore, someone could be on record as holding that view: conversely, you could have someone who holds entirely the opposite view and who believes that all children should be in special schools and not in mainstream schools.
The idea is to ensure that the independence goes a little further than someone who has the material contact, or a conflict of interest, with the local authority and/or a child. It is a matter of making sure that the partiality--the philosophical view that that person holds--is a case in point. I should point out to the Minister that some people who have been appointed by the Government over the past three years have very publicly known philosophical views about education and are in positions of judgment on local authorities. That creates an atmosphere of mistrust among people receiving those services. I beg leave to withdraw my amendment.
moved Amendment No. 8:
Page 5, line 20, leave out ("withdrawn") and insert ("determined in favour of the appellant.
( ) If an appeal is treated as determined in favour of the appellant as a result of subsection (2), the Tribunal is not required to make any order.").
On Question, amendment agreed to.
Clause 7 [Duty to inform parent where special educational provision made]:
moved Amendment No. 9:
Page 6, line 5, at beginning insert--
(""Special educational provision: dispute resolution.
317ZA.--(1) The parent of a child for whom no statement is maintained under section 324 shall be informed before special educational provision is made for him.
(2) If the parent objects to such provision being made as being unnecessary or inappropriate, the dispute shall be resolved as provided for in section 3 of this Act, and until it is resolved, the special educational provision shall not be made.").
My Lords, the amendment now before us deals with something about which I feel most strongly. In fact, after re-reading what was said during the last stage of the Bill, I believe that my point has been overlooked. The main thrust of the Government's argument was that it would cause delay and, therefore, provision for a child would be delayed.
I believe that it would be very much a minority of parents who find themselves in this position. However, I have in mind a situation where the actual drafting of a statement has taken so long, or is taking so long, that the parent scrapes together enough resources and manages to find a third party who will make special provision for the child in an independent school in the interim. However, the parents have, all along, wanted a mainstream place for the child. Finally, when the decision is made, the mainstream place has not been kept open because the authority wishes to fill it and because provision has been made in the independent sector, albeit that the parents can barely afford it or are making enormous sacrifices in order to sustain it. But nevertheless they would still like a place in a mainstream school. The LEA may disregard that. I am speaking to the wrong amendments. I am speaking to my next group of amendments.
I shall now address Amendments Nos. 9, 10 and 11 which concern giving information to parents of children for whom no statement is made. We all know--many of us have had children in this position--of cases where a school identifies that a child has special educational needs which fall short of needing a statement. A typical example is a child who is having real difficulties learning to read. The school may decide that, given the difficulties that the child is experiencing, the child will be withdrawn from mainstream classes on a regular basis. Help is brought in from outside to help that child in special classes and the child is later fed back into the mainstream class.
If special provision is to be made by a school for a child for whom no statement is maintained, the parent has a right to be told that that provision will be made. Often children who have difficulties learning to read are sensitive. It is important to discuss the fact that a child is to be withdrawn for special provision. I should have thought it goes without saying that the parent should be informed of that. If the parent has an objection to that, it is right that that objection should be heard. That process does not have to take a long time. A school can inform a parent that it is worried about a child and plans to make special provision for that child and would like to discuss the matter. If a parent disagrees with that, at least the informal resolution procedures can be used to establish what is in the best interests of the child. It is important to have that information. I should like to see that measure on the face of the Bill. I do not believe--as the noble Lord claimed at the previous stage of the Bill--that such a process would cause unnecessary delays for the child. I beg to move.
My Lords, as I said on Report, we would expect schools to inform parents at the time they begin making SEN provision so that if parents have concerns they can make them known early in that process. In that respect we are at one with the noble Baroness. I recall that on Report the phrase "Stalinist" was used with regard to our approach to these issues. I sought to rebut that remark on that occasion. I emphasise again today that, of course, we take seriously the interest of parents in the education of their children. The whole purpose of Clause 7 is to ensure that parents are aware that special provision is being made for their children so that they can contribute to that process and raise any concerns that they may have. However, our approach differs from that of the noble Baroness in that we believe that there has to be a sensible balance between parents' rights to express a view on their children's education and the obligations of schools to meet children's special educational needs.
Parents of course have an important role to play in the education of all children, not just those with special educational needs. But except in particular circumstances--for example, in relation to sex education--parents do not have a statutory right to exempt their children from provision. Teachers do not have to agree their lesson plans with parents before taking classes. Were this group of amendments to be accepted, parents of children with SEN but without statements would be given exceptional responsibility in deciding the provision made for their children.
To point that out is not to be dismissive of the role parents can and should play in the education of their children. However, I cannot agree with the way in which the noble Baroness emphasised--as she did on Report--that the parent
"should be entitled to challenge and, if necessary, object to such provision if, for whatever reason, the parent disapproves".
That is not a balanced approach. The noble Baroness referred to abusing or neglectful parents who would be debarred from objecting to such provision. However, the amendments make no provision for that. Nevertheless, she suggests that all other parents affected by the provisions of Clause 7 should be able to object to the SEN provision for their children if they consider that provision--as she said--
"to be unnecessary, unhelpful or just plain wrong".
The amendments would not only allow parents to object but would also allow them to prevent the provision being made until their objections are resolved. Unfortunately it is not just abusing or neglectful parents who can misjudge their children's best interests. What would a school be expected to do in such a circumstance, sit on its hands and leave a child's special needs unaddressed because "for whatever reason" a parent disapproves of the special provision that the school proposes? Of course, where parents have special concerns--
My Lords, that is exactly what the Government are doing in new Section 316(3). They are saying that if the parent does not want the special provision to be made it shall not be made. If the Government think that that is how the matter should be dealt with, why not be consistent?
My Lords, contrary to what the noble Lord asserts, I maintain that the Government are being consistent. We are considering the identification of special needs and the way in which a school responds to that. The group of amendments that we are discussing concern that early phase of the process. I merely contend that at that stage it is important that a school should be able to consider the interests and views of parents. However, the decision to be taken on the provision of special educational needs should not be delayed unnecessarily, if only because--as I think the noble Lord would recognise--some special educational needs may require substantial provision. We also seek to ensure that there is adequate provision in schools for those whose special educational needs are fairly minor. Yet these amendments would establish a substantial degree of bureaucracy in cases where a school was taking relatively minor decisions on a child's educational needs.
We are discussing the provision of education within a school. The noble Lord discussed the type of school, not the provision being made within a school. We are now discussing the education being provided within a school. We contend that the amendments, if accepted, would introduce an imbalance into a situation where one has to balance the needs of parents with the proper provision of education. A school, of course, also has considerable obligations in that regard.
My Lords, first, the Government cannot have it both ways. When we have asked for time-scales to be tightened, the Government have always argued that they are realistic and sufficiently tight for LEAs to meet their obligation to children with special educational needs. Therefore, delay cannot be an issue. The Government are satisfied that those who are charged with resolving disputes can do so within a short time-scale.
Secondly, the noble Lord ascribes to my amendments powers that are simply not there. We say that parents have a right to information about their child. I believe that in the case of any child who receives education which is different from that of the average child in a school, a parent has an absolute right to be informed that his or her child is receiving different provision. A parent also should have a right to ask why that is being done and, if they object to it, to challenge that provision. Some parents may find another way to resolve the issue. When they know the problem, after amicable discussion they may seek another solution. That may take the pressure off the school to provide additional resources for special provision for the child. There are sensible reasons for parents to have the right to know that their child is being treated differently and to be given the opportunity to make other provision.
Thirdly, the noble Lord spoke as though the parent has a veto. The parent does not have a veto. There will be a delay if the matter goes as far as the resolution procedure. However, the resolution procedure set out in Clause 3 is the informal in-house LEA resolution procedure, rather than the tribunal procedure, which could be completed within a week. The parents, school and/or the advisory service from the LEA could discuss the best interests of the child. The dispute can be discussed, the objections of the parents heard, and any alternative provision that the parents wish to make put forward. The notion that parents have a veto is not true. It is not the first time that the noble Lord has ascribed to amendments in my name on the Order Paper powers which are not contained within them. I beg leave to withdraw the amendment.
moved Amendment No. 13:
Page 8, line 21, at end insert ("or head teacher, and
(c) in relation to a provider of relevant nursery education, the person or body of persons responsible for the management of the provision of that nursery education.
( ) "Relevant nursery education" has the same meaning as in section 123 of the School Standards and Framework Act 1998, except that it does not include nursery education provided by a local education authority at a maintained nursery school.").
On Question, amendment agreed to.
Clause 9 [Duty to specify named school]:
My Lords, it is with profuse apologies that I speak now to Amendment No. 14. It is the group of amendments to which I spoke earlier by mistake. The group includes Amendments Nos. 15 and 16.
On Report I referred to the catch-22 situation for parents. They wait so long for procedures to be completed which provide a statement for a child that at great expense, or having begged and borrowed from third parties, they make provision in the independent sector while awaiting a place in a maintained school. Those parents have a preference for a mainstream place. My amendments are modest. They recognise the LEA's difficulty in keeping a place open indefinitely or until the process is completed. The time limit proposed is that the LEA keep a place open for one half of a school term.
After huge expense to the parents, great distress to the family, and perhaps to a third party which started to pay for the provision and cannot sustain such payment, the parents are placed in a difficult position if the LEA decides that the parents have chosen independent provision and it no longer feels an obligation to make provision. The amendment covers a situation which occurs only rarely; but when it does it causes distress.
When a statement is made which illustrates that the child's needs are severe, provision should be made as quickly as possible. If the process takes a long time and the parent makes provision in the independent sector but wishes for a place in the mainstream school, some accommodation should be made. I beg to move.
My Lords, on these Benches we failed to enshrine in the Bill a statutory entitlement for a child to a specific degree of provision. It is only fair to say that the Government are trying to gain that end, possibly by other means. I have received two helpful letters from the Minister since Report stage which are pertinent to this group and the previous grouping. They are inter-linked.
Much of the detail is in the code of practice which is not debated. I do not suggest that we should do so now because there will be an opportunity to debate the code later although not to amend it, as Ministers know. We at least know the Minister's intentions. In her letter of 26th February, the noble Baroness said:
"You asked particularly about what the final version would say on specifying the special educational provision for a child with a statement of special educational needs. I can confirm ... that the guidance will make clear that a statement should describe clearly all of the child's special educational needs in full"-- it does so now; we accept that--
"set out the main objectives that the special educational provision aims to meet; specify clearly and in detail the provision required to meet each of the child's needs and describe the arrangements for setting shorter-term objectives for the child and any special arrangements for the annual review of the statement".
I had written to the noble Baroness, so I received another letter the following day. One has quick ministerial replies when the Bill is before the House. The letter of 27th February took us a little further and should also be on the record. It states:
"On the question of provision for children with special educational needs, Bryan Davies was, of course, responding to the particular circumstances you described. Decisions about the provision to be made for each child must always relate to their individual needs. I hope I explained in my earlier letter how we aim to develop the guidance in the final version of the revised SEN Code of Practice on specifying provision in children's statements".
This is important. These are the obligations which will be placed upon an LEA. The letter continues:
"The provision of specialised equipment and educational material appropriate to an individual child's needs would be determined as part of the process of assessment and producing a statement for the child. For children without statements this can take place through the school based stages set out in the SEN Code of Practice. All children identified as having SEN, whether they have a statement or not, are expected"-- officials might note for the final version of the code that that should be "must", not "expected"--
"to have individual Education Plans. These are drawn up by the child's school and record the nature of the child's learning difficulties, the action to be taken to help the child and the strategies employed to enable them to make progress. Individual Education Plans"-- that is the plan per child per term--
"[must] include, for example, the staff involved and any specific programmes, activities, materials and equipment and arrangements for reviewing and monitoring progress with the child and their parents".
I am glad to see that the noble Lord the Minister nods. This will be a considerable obligation in future on education authorities.
"Individual Education Plans are generally reviewed each term".
That should read "must be reviewed each term". The special school with which I am involved, and others, do so automatically. That should be strengthened in that regard.
I have read out those consequences. They are now available to a wider audience. We cannot amend the code but anyone interested in special education now knows what the Minister has in mind. The implications are interesting. We on this side of the House, or those interested in special schools, are not against inclusion provided that the facilities, teachers and teacher support services are available. For children with acute physical and mental disabilities, this is a very expensive process. I know that the Government's mantra is that they will provide £220 million over the next three years. I think that I have the correct figure. It has been stated enough times by the Minister. It sounds an enormous sum of money. There are over 30,000 schools. That sum represents £7,300 per school spread over three years; £2,000 a year for all that I have just read out--special education for hard-of-hearing, blind or physically disabled children.
We wish to flag up, without making it a matter of controversy, that we consider the Government have totally underestimated the financial consequences of this measure. It will be an enormous time bomb under any future Conservative Chancellor of the Exchequer who will have to meet the obligations implicit in the Bill. I am not against that, because I believe that our society should give disadvantaged children the best education available, but the Government have not faced up to the issue.
We now have on the record in Hansard what the Government are going to do. We shall make sure that they live up to it.
My Lords, I shall reply to the points made by the noble Baroness, Lady Blatch. However, following the comments of the noble Lord, Lord Baker, it is an interesting constitutional point whether one can amend a ministerial letter to change the law. He seemed to be doing that in part of his contribution. He will recognise that the aim of the letter was to explain as clearly as we can the obligations that we expect to put on schools. The issue of resources came up many times in Committee and on Report. We all know that the ideal world is never arrived at,because none of us has the resources required to bring it about, but we shall do the best that we can against the resources that need to be made available. As the noble Lord said, significant resources have already been made available. The noble Lord takes considerable pleasure in having received letters about that from us. I do not remember receiving a letter in such a short space of time under previous Conservative administrations. The noble Lord may have more persuasive techniques than I have, or we may be a more efficient and competent Government. I leave the House to judge.
We continue to view the amendments as unnecessary. Clause 9 relieves LEAs of the duty to name a school in a statement only if parents have made suitable alternative arrangements. The intention is to make available to children who need them places that LEAs might otherwise have to hold open indefinitely, even though the children concerned may never take them up. As I have explained in previous debates, nothing in Clause 9 changes the fact that if parents cease to make suitable alternative arrangements for their children, the LEA will continue to be responsible for arranging special educational provision for the child.
Nothing in the clause is intended to reduce the availability of maintained sector places for children with SEN. The noble Baroness has repeated the argument that she made on Report that parents may be in a catch-22 situation.
My Lords, I withdraw the word, "indefinitely", but for a period of time the place would not be available to another child who might need it. The burden of the case that we have presented in Committee and on Report is that local authorities are under an obligation to use their resources efficiently. Part of that must be to make available places for children with those needs and to ensure that, as far as possible, places are not kept open unnecessarily, although I accept the point that the noble Baroness has just made about the change from her previous suggestion.
If parents disagree with the provision or school proposed by the LEA, they will make either stopgap arrangements or alternative suitable arrangements. Case law indicates that suitable arrangements must be intended to continue and be capable of continuing for a reasonable period. LEAs will be able to rely on the provision in the clause only if parents have made suitable arrangements. Otherwise the arrangements will be considered stopgap arrangements and the responsibility will remain on the local authority.
If parents in that situation disagree with the provision or school proposed by the LEA and place their child in another school--as the noble Baroness said, it might be an independent school at their own cost--and then appeal to the tribunal to try to have that school named, they may be worried that any school place proposed by the LEA would be lost. However, if the tribunal agrees with the parents' choice of school, the LEA will be obliged to include that school formally in the statement. If the parents lose, the tribunal will be able to order the name of a different school proposed by the LEA or parent, including the original school, to be included in the statement. The original school may not be available, but requiring an LEA not to fill that place just in case, even for a short period--if the case went to the tribunal it would be a longer period--would be unfair to other parents who might want and need the place for their child.
We do not accept that the amendments are necessary or desirable. As we have said before, the LEA will be under a statutory duty to make suitable provision in all cases if the parents are not making suitable arrangements of their own. By definition, stopgap arrangements do not count as suitable arrangements.
My Lords, again I am grateful to the Minister for his answer. We shall have to agree to disagree about this issue. I have two points. First, the department has been incredibly good about answering letters since Report. I record my thanks for that. However, I have had a request in for 18 months for information about education action zones. I am still waiting for the evaluation report.
Secondly, like my noble friend Lord Baker, I am pleased that there is something on the record about resources that gives some reassurance. However, my noble friend had a Written Question printed in yesterday's Hansard asking for an estimate of the number of extra teachers and teacher assistants trained in special educational needs skills that will be needed to implement the Bill. There is a very long Answer, but it does not give the number of teachers that will be needed, or even an estimate. That may well link with the fact that a parent could be denied a place in a mainstream school simply because the financial appraisal of the Bill says that no extra staff will be required. I beg leave to withdraw the amendment.
My Lords, we dealt with the same amendment on Report, when I thought that the Government were simply being lazy. Since then they have done the same again. The grammatical construction that the amendment refers to should not be permitted in statute. The purpose of statute is to be clear. The use of the word "that" to link two clauses is perfectly good conversational English if there are two reasonably short clauses fairly close together. For example, one might say, "Noble Lords on the red Benches may have their eyes closed. That does not mean that they are asleep". Everyone understands that. However, if there is a larger or more complex clause in front, the only way to handle it in conversational English and still be understood is to repeat the subject of the clause rather than to use "that".
In statute, the convention has largely been to refer to a subsection by name. Indeed, in Clause 13, subsection (1) is referred to on two subsequent occasions. On both occasions, the word "that" could be substituted and, with much thought, someone could work out that "that" meant subsection (1). If someone applies a lot of thought and care to the matter, no exactness will be lost, but it causes people to stop and think about why the word "that" is being used rather than "subsection (1)", which is the way in which statutes are usually written.
We employ a rather unusual version of English in statute. There may be something to be said for trying to write statutes in more ordinary English, but the Government have randomly decided that "subsection (1)" should be substituted by "that" if it appears at the beginning of subsection (2)--and only then--and that otherwise it is called subsection (1). That merely causes confusion. If the word "that" means "subsection (1)" and "subsection (1)" is the usual way in which such a reference would be made in statute, we should call it subsection (1) so that everyone knows that that is what is meant. Using the word "That", as is proposed, merely makes one pause and wonder whether it could mean anything else. After much thought, one decides that it must mean subsection (1). However, everyone could have been saved five minutes' work if the words "Subsection (1)" had been used in the first place. I beg to move.
My Lords, I am rather surprised that the noble Lord has chosen to bring back this amendment yet again at Third Reading. As I explained on Report, "That" in new Section 28C(2) under Clause 13 refers to the duty on schools to take reasonable steps to ensure that disabled pupils are not placed at a substantial disadvantage. That is perfectly clear.
I could take up the time of the House by giving other examples of where this drafting style has been used in recent legislation, but I shall not do so. I hope that the noble Lord will withdraw his amendment.
My Lords, in moving Amendment No. 18, I shall speak also to Amendment No. 35. These two amendments relate to the reasonable steps that need to be taken either by a school or, in relation to Amendment No. 35, by a further or higher education institution in order to comply with their obligations under Part II of the Bill.
We argued this issue both in Committee and on Report, and I do not want to repeat the arguments that I made then. However, I shall summarise them briefly. First, I have argued previously that it is unnecessary to have on the face of the Bill this detailed listing of the factors which underlie what "reasonable steps" will be. I have argued that the wording, and in particular that in subsection (4)(a), which relates to Amendment No. 19 tabled by the noble Lord, Lord Lucas, is objectionable. In the words of the noble Lord, Lord Rix, in Committee, it provides, a "cop out" for both schools and further education institutions in relation to their obligations here.
On Report, the Minister responded to my request by quoting a letter from the noble Baroness, Lady Warwick, which dealt with the position of universities and encouraged her to keep the wording on the face of the Bill. My response to that was, "Well, she would do that, wouldn't she?". Coming, as I do, from the university sector, I know how poorly universities are placed in relation to disability. They need to do a great deal and I do not believe that they should be let off the hook in terms of those obligations. I fear that subsection (4)(a) does let them off the hook. Similarly, we argue that subsection (4)(g) is unnecessary because it duplicates the caveat which already appears in Clause 1(3)(b).
Finally, we argue that, in so far as it is necessary to spell out these matters, it is much better that they are put into the code of practice. That is what these two amendments seek to achieve. That is done in the case of the SEN part of the Bill. I am delighted that the amendment that we put forward in that respect, which suggested that there should be explicit mention of the guidance, is now incorporated into the Bill.
The Minister said that one reason for wanting the guidance to appear at that stage and for rejecting the amendments that we put forward in Committee, where there might be an illustration of what "reasonable steps" were, was that any illustration would become out of date and that one needed flexibility. Again, we argue that putting the wording into the code of practice provides a degree of flexibility. Therefore, I repeat that this detailed guidance should not be on the face of the Bill but should appear in the code of practice. I beg to move.
My Lords, before the noble Baroness sits down, perhaps I may mention that the expression "must have regard to" can have various legal effects, depending upon the circumstances. However, when she says,
"must have regard to any relevant provisions of a code of practice issued under section 53A", does that mean that it will have a binding legal effect or does it mean that it is something that merely must be considered?
My Lords, many amendments have been moved today. The question that arises from them is whether the requirements should be on the face of the Bill or in the code of practice. Throughout the Bill, sometimes the Government have favoured one option; sometimes they have favoured the other. I can quite understand that.
My noble friend's opposition to Amendment No. 1 concerning whether the needs of the child should be placed on the face of the Bill was that it provided an excuse for local education authorities to abuse it. We all know that that abuse has taken place. However, that argument applies equally to these amendments--at least, I believe that to be the case. The duties on local education authorities and schools should not be prescribed rigidly on the face of the Bill. I believe that it is far better that they appear in a code of practice. That will encourage rather than discourage action and will provide the essential flexibility.
I believe that the provision for disabled children in mainstream schools will improve enormously after this Bill is enacted, thanks to my noble friend and her many efforts. What is inappropriate or unreasonable today will become routine tomorrow. I believe that we need to allow for changes in the expectation of both schools and parents. We should not conceal the difficulties of the future but neither should we highlight them on the face of the Bill. Therefore, I believe that the best means are those spelt out in the amendment.
My Lords, I, too, briefly give my warm support to the amendment. In particular, I support Amendment No. 35 because SKILL, the National Bureau for Students with Disabilities, of which I am president, was particularly keen that the guidance should appear in the code of practice rather than on the face of the Bill.
My Lords, I gather from those paeons of praise that this is the coin for which the Liberal Democrats sold Amendment No. 1. If so, at least they have a real coin. I believe that their amendment is well worth supporting. It will make a positive difference to the Bill and will enable my amendment, Amendment No. 19, to be dealt with in another, and perhaps better, way. Therefore, my gloom will be lightened slightly if this amendment is agreed to by the Government.
My Lords, for once I shall be able to please everyone who has spoken in this debate. When considering whether it is reasonable to have to make a particular adjustment, we firmly believe that it is right that a school or post-16 institution should have regard to any of the factors currently set out in new Sections 28C(4) and 28T(2) respectively.
However, although we believe that there is no problem in those factors appearing on the face of the Bill, I accept that there has been much debate on the issue. We have listened very carefully to the points raised both in Committee and on Report. Given the strength of feeling and the fact that the DRC has confirmed that all those factors will be covered in the code of practice, we have decided that we can accept Amendments Nos. 18 and 35 in the name of the noble Baroness, Lady Sharp. Of course, that will have the effect of incorporating Amendment No. 19 in the name of the noble Lord, Lord Lucas.
My Lords, the reason was that the noble Lord, Lord Northbourne, had already held a number of discussions on the issue that he raised on Clause 1. There have been no discussions either with officials or with Ministers about the matter raised by the noble Baroness, Lady Sharp of Guildford. Therefore, it seemed perfectly reasonable to agree to a meeting on that issue.
My Lords, I shall be brief. The amendment relates to proposed new Section 28C(6), which makes no sense whatever. It is entirely otiose and the Bill would not lose anything if it were removed; in fact, throughout our deliberations on the Bill no Minister has given any explanation of the provision's importance. For the last time, I shall read it out. It states:
"In determining whether it is reasonable for the responsible body to have to take a particular step in relation to that person in order to comply with its duty under subsection (1), regard shall be had to the extent to which taking the step in question is consistent with compliance with that request".
That provision should be taken out of the Bill. I beg to move.
My Lords, I believe that my noble friend explained in a letter that she sent to the noble Baroness that removing proposed new Section 28C(6), as Amendment No. 20 proposes, would nullify the effects of Amendment No. 21, which is tabled in the name of my noble friend and which I know the noble Baroness supports.
It may be helpful to noble Lords if I make it clear that new subsections (5) to (7) of new Section 28C should be read together, as should subsections (3) to (5) of new Section 28T. When they are read together, the subsection to which the noble Baroness objects becomes much clearer. She insists on looking at such provisions in isolation; I am not sure why she does so.
In addition, I reiterate to noble Lords what was said on Report. We want to make it completely clear to schools and institutions that, in discharging their duties under Clauses 13 and 28 to make reasonable adjustments, they should take into account any request that has been made to maintain confidentiality. The provisions in question--that is, new subsections (5) to (7) of new Section 28C and new subsections (3) to (5) of new Section 28T--will deliver that effect.
For the two reasons that I have highlighted, we cannot agree to the amendment. We hope that the noble Baroness will agree that it is not necessary.
I shall also speak to the government amendments that are grouped with Amendment No. 20. Government Amendment No. 21, which appears on the Marshalled List in the name of my noble friend, takes forward the commitment that we made on Report to introduce an amendment to ensure that schools take account of requests that are made by disabled children to keep their disability confidential when considering whether it is reasonable to make a particular adjustment. The amendment takes forward the commitment that we made to noble Lords on Report.
Government Amendment No. 21 will ensure that when considering a reasonable adjustment schools take account of a disabled child's confidentiality request, provided that the school reasonably believes that the child has sufficient understanding of the nature of the request and its effect.
Government Amendment No. 37 mirrors for the post-16 sector the wording of Amendment No. 21. As noble Lords will recognise, that is being done purely to achieve consistency in the drafting of the Bill.
My Lords, when I moved the amendment, I should have said how much I welcome Amendments Nos. 21 and 37. I did not regard them as being connected with Amendment No. 20 because confidentiality is a different issue. I am grateful to the Government for tabling them; they are much welcomed. Many noble Lords have spoken in favour of such amendments during the Bill's passage through the House.
I have read the Bill and Clause 13 very carefully. Subsection (1) states:
"The responsible body for a school must take such steps as it is reasonable for it to have to ensure that"-- various duties, which are set out in the clause, are complied with. However, subsection (4) states:
"In considering whether it is reasonable for it to have to take a particular step in order to comply with its duty under subsection (1), the factors to which a responsible body may have regard include"-- a whole list of provisions, which are set out in the Bill. The degree to which a body has complied or been seen to comply is implicit in subsection (4).
I continue to believe that subsection (6) is a gobbledegook passage. No doubt the Government's arm would be strengthened by the support of the Liberals if I tested the opinion of the House. I beg leave to withdraw the amendment.
moved Amendment No. 21:
Page 12, line 7, leave out from second ("request") to end of line 9 and insert ("which asks for the nature, or asks for the existence, of a disabled person's disability to be treated as confidential and which satisfies either of the following conditions--
(a) it is made by that person's parent; or
(b) it is made by that person himself and the responsible body reasonably believes that he has sufficient understanding of the nature of the request and of its effect.").
On Question, amendment agreed to.
Clause 14 [Accessibility strategies and plans]:
moved Amendment No. 22:
Page 12, leave out lines 16 to 25 and insert ("must prepare, in relation to schools for which they are the responsible body--
(a) an accessibility strategy;
(b) further such strategies at such times as may be prescribed.
( ) An accessibility strategy is a strategy for, over a prescribed period--
(a) increasing the extent to which disabled pupils can participate in the schools' curriculums;
(b) improving the physical environment of the schools for the purpose of increasing the extent to which disabled pupils are able to take advantage of education and associated services provided or offered by the schools; and
(c) improving the delivery to disabled pupils--
(i) within a reasonable time, and
(ii) in ways which are determined after taking account of their disabilities and any preferences expressed by them or their parents, of information which is provided in writing for pupils who are not disabled.
( ) An accessibility strategy must be in writing.").
My Lords, the amendment and those grouped with it are largely technical, with the exception of Amendments Nos. 22 and 24, which fulfil commitments that we made on Report to extend the planning duty.
Amendments Nos. 22 and 24 will widen the planning duty and help to meet the needs of all disabled children. The planning duty will now have three elements. First, LEAs and schools will have to plan to increase the extent to which disabled pupils can participate in the curriculum. That will go beyond teaching and learning arrangements to include classroom organisation, timetabling and staff training. That is our response to the amendments tabled by the noble Lord, Lord Rix, on Report. I understand that unfortunately he cannot be here today, but he has let my noble friend know that he is more than happy with the amendments.
Secondly, LEAs and schools will have to plan to improve the physical environment of the school for the purpose of increasing the extent to which disabled pupils can take advantage of education and associated services that are provided or offered by the school. I have already explained that that duty involves much more than providing ramps and lifts.
Thirdly, and in response to amendments tabled by the noble Baroness, Lady Wilkins, and the noble Lord, Lord Ashley of Stoke, on Report, LEAs and schools will have to plan to improve the extent to which disabled pupils receive written information in an accessible way. Some noble Lords had concerns about the extension of the planning duty in that way. Let me make it clear that the new planning duty will not be burdensome. It reflects best practice on the part of some schools. For individual children who have statements of SEN, LEAs will have to arrange provision to meet their special educational needs. Under the reasonable adjustments duty, LEAs and schools will be required to think about the needs of individual disabled children. The planning duty will ensure that LEAs and schools take a strategic look at their provision for disabled pupils in general and will also cover matters which are not covered by the reasonable adjustments duty. We will produce guidance that will explain further what we expect LEAs and schools to do.
Amendments Nos. 29, 30 and 31 are in response to an amendment tabled by the noble Lord, Lord Lucas, on Report. They relate to the enforcement of the planning duty by the Secretary of State and the National Assembly for Wales. They will remove unnecessary references to "powers" in proposed new Section 28M(1) and (4).
Amendment No. 32 is simply a technical amendment to Clause 25; it relates to the "Interpretation of Chapter I". It provides a definition of the term "parent" in Scotland, to mirror that which is already provided for England and Wales. I beg to move.
My Lords, I find this situation rather strange. A strategy is normally a plan for fighting a battle but the word is being used differently in this context. Amendment No. 22 uses the phrase, "an accessibility strategy", which one would expect, on first sight, to be a method of approaching a particular building or place. However, the amendment goes on to state:
"An accessibility strategy is a strategy for, over a prescribed period ... increasing the extent to which disabled pupils can participate in the schools' curriculums"-- and in other matters involving education. It goes on to state that such a strategy is for,
"improving the delivery to disabled pupils ... of information which is provided in writing for pupils who are not disabled ... An accessibility strategy must be in writing".
That is fair enough.
I find this very unusual. I wonder if the noble Lord could tell us whether there is a precedent for using the concept of strategies that can be found in other statutes.
I thank the Minister most warmly for Amendments Nos. 22 and 24 responding to an amendment moved and withdrawn by my noble friend Lord Rix in Committee and on Report. My noble friend is in Morocco and he trailed me as a most elegant and effective understudy at column 765 on 20th February--I am not sure that your Lordships are getting that. He also said that I would graciously accept the amendment as proffered by the Government. I am delighted to do so.
I can say that the Special Educational Consortium warmly welcomes the fact that the planning duty has now been widened to cover planning for access to the curriculum, to the physical environment and for access to information. This will benefit schools and LEAs by consolidating and building upon existing requirements, notably the inclusion statement in the national curriculum. The re-drafting of the clause by the Government creates a positive new emphasis placing a primary focus on access to the curriculum. I hope that the guidance will explain that this might include changes to teaching and learning arrangements, pupil groupings, arrangements for classroom support, curriculum organisation and adaptation, timetabling, staff training, school organisations and materials. This will allow LEAs and schools to plan to welcome children with a diverse range of disabilities. We also recognise the fact that there is significant funding via the Standards Fund and the Schools Access Initiative to support schools in welcoming young people with disabilities.
I pay tribute to the persistence of my noble friend and thank the noble Baroness, the noble Lord, Lord Davies, and the Minister in another place for having listened and reacted so positively to these extremely useful and welcome amendments.
My Lords, I am extremely grateful to the Minister for the Government's amendment to Clause 14. The inclusion of provision for accessibility strategies and plans to include improvement of the delivery of information in alternative formats to disabled children within a reasonable time and taking into account their preferences is extremely welcome. It will achieve everything that the RNIB had hoped the accessible information policies would do.
The combination of physical access, curriculum access in the widest sense and explicit reference to accessible information is a major step forward. Indirectly, the duties to plan to improve accessible information for children will mean LEAs and schools are in a better position to meet the needs of parents for accessible information.
I am grateful to the Government for this amendment that will help thousands of visually impaired and other print-impaired children. It will be a great support to teachers.
My Lords, when the noble Lord, Lord Rix, and I were discussing our respective amendments before Report stage I told him that he would be lucky; that the Government would never go that far. The Government have gone further. I am delighted. I congratulate the noble Lord, Lord Rix, on his achievement. I am thankful for the small changes the Government have made at my prompting.
My Lords, there is never un-hallowed joy, is there? I delight in the commendations from the House for the amendments we have brought forward. I am utterly and totally stumped by the question asked by the noble Lord, Lord Renton, as to whether the word "strategy" appears in any other statute. I do not know the answer. I shall write to the noble Lord if our researches prove positive. I assure him--and he will have heard from noble Lords who have contributed to our intensive debates over a substantial period of time--that the amendments I propose are in response to widespread needs outside, well articulated at various stages of the Bill. We are responding to those needs and expressions of opinion.
moved Amendment No. 23:
Page 12, line 25, at end insert--
("( ) In preparing their accessibility strategy, each local education authority must include the estimated costs, at current prices, of the implementation of such improvements, and must if the cost cannot be found locally, forward to the Secretary of State these estimated costs with a request for capital grant to cover those costs for the years in question.").
My Lords, I speak to Amendments Nos. 23 and 25. This is still on the issue of planning for planning authorities. At Report stage the noble Lord, Lord Davies of Oldham, said he feared that the effect of my amendments would be to erect barriers to increased accessibility to schools for pupils with disabilities. I asked him what that meant and I did not receive an answer. It would be helpful to know what are the barriers. If one is to plan and validate the plan--in other words, for the plan to materialise, and it requires resources to do that--the only way in which it will happen is to have a realistic view about what those resources are and at the end of the day to have those resources.
The noble Lord, Lord Davies, went on to say:
"The duty is to plan within the resources available to the responsible body".--[Official Report, 20/2/2001; col. 771.]
The very meaning of the word "plan" is that one is engaging in a planning duty to effect activity on into the future. It is not about the here and now. I know from my local authority experience and from colleagues who are still there grappling with so many issues that they do not know what their resources will be in the future. The noble Lord says that they do know. He went on to say that they have to plan within the resources available--although they do not know what they are--and that that is implicit in the Bill. It is not implicit in the Bill. There is nothing in the Bill that spells that out. The noble Lord said it did not need to be spelt out. To those who will have to implement the Bill in local authorities it does need to be spelled out.
The noble Lord also said that what was proposed would delay things and would be bureaucratic. That is not so. If the local authorities have to prepare plans and produce an accessibility strategy it is right that they should have some knowledge in order to be able to let parents know that this is what they intend over time. They ought to have some view as to what the costs are. If they do not know what the costs are, it becomes an aspirational plan only. If it is to be a realistic plan with a view to implementation, they ought to have a view about the costs. The noble Lord gives the game away by saying that they have to plan within the resources available. I believe the noble Lord is wrong. However, if he is right and is about to say it again, then the resources are known and they should be part of the information set out in the plan.
Finally, the noble Lord said at col. 771 that I had suggested in Committee that we were raising the hopes of people only to dash them. If we are only indulging in planning; if we disregard the actual costing of those plans; and if, at the end of the day, because they were not costed, they are not capable of being delivered because the resources are not there--I know we will have a reiteration of how much money is being made available but I am talking about the LEA's ability to plan and to deliver a plan--then hopes will be raised only to be dashed. I should like to think that it is consistent with what the noble Lord is saying; that what we are doing is creating a new duty and applying it in a commonsense way that reflects the reality of the schools. The reality of the schools is that they need to know that their local authorities are planning in such a way that they, as schools, can deliver. That means knowing the cost of what it is they are planning to do. I beg to move.
My Lords, clearly I did not persuade the noble Baroness, Lady Blatch, in Committee or on Report of the Government's case on this important issue. I will strive to do so today by indicating that she upbraided me for saying that the amendments would create a barrier.
Our problem with the amendments is straightforward. We were concerned that the amendments would offer an excuse to some LEAs and schools not to act. They could blame their lack of action or will on the fact that the Government had not made a direct payment to them to carry out the work. That would undercut the planning duty and work against the inclusion of disabled children in schools, which is the whole basis of the Bill before the House.
We have said a number of times that we want LEAs and schools to plan for increasing access to schools for disabled children and to implement those plans. But we have been realistic. We require LEAs and schools to plan to improve access over time and from within the resources available to them. That is surely the best way of securing access to schools for disabled children in a way which meets the recommendation of the Disability Rights Task Force.
LEAs and schools have a number of sources of funding available to them and it is from within the total funding available to them that they should plan. As was said on Report, and as has been repeated by the noble Lord, Lord Baker of Dorking, who graphically recounted the precise sum, we are making available £220 million through the Schools Access Initiative for improving access to maintained schools. The noble Baroness, Lady Blatch, seemed somewhat unimpressed by that sum. But we had no complaints from schools, LEAs, the lobby or their representatives. In fact, the level of our commitment has been warmly welcomed by all in the field. I must point out also that this money will be used strategically by LEAs in partnership with their schools--the burden of part of the noble Baroness's representation was that schools needed to know that the local authority was planning intelligently, sensibly and creating the opportunities for them to meet requirements.
It is not the case that every school will receive a share of the money, regardless of need; it will depend on the plans that they put forward. For example, LEAs might plan each year to adapt another school in a particular area to allow children with a range of disabilities to attend; or they might adapt all their schools for a particular disability; or they might choose one of those approaches and also give themselves the flexibility to respond to emergencies; for example, when a child becomes disabled while at school and wishes to remain at their present school. They may decide to carry out access work on the back of other refurbishment at a school. That is a matter for each area and not for prescription.
It is wrong to say that LEAs cannot plan without first having the money in the bank. The Government are the first to have given LEAs notice of their future allocations. When we announce the breakdown of the £50 million School Access Initiative for 2001-02 later this month, we will give LEAs information about how we will allocate the grant for the subsequent two years when £70 million and £100 million become available. That will give LEAs an unprecedented forward view of the resources that they have to spend on access to their schools.
I understand that some will regard that amount as being inadequate. It cannot be adequate because the needs are enormous, and we all recognise that. But it is a clear basis upon which local authorities and schools can intelligently plan their improved access. We believe our planning duty will improve access by disabled children in every sector of schools education, and it will do so in a manageable way. That is the basis on which I ask the noble Baroness to withdraw her amendment.
My Lords, it is not the first time, either today or on other occasions when we have been discussing this Bill, that the noble Lord ascribes to my amendments something which is not there.
First, in answer to my question on barriers, it was said that it would give the LEAs an excuse not to act. But they have no excuse not to act; they have a legal obligation to act. This Bill puts the LEAs under an obligation in law to produce plans. In fact Clause 14(4) also says that those plans will be inspected to monitor the degree to which they meet that obligation under the law. So there is no hiding place for LEAs in that respect and nothing in my amendment which will allow them to ignore their duty to provide an accessibility plan.
Secondly, accessibility is not only about ramps and means of accessing a building; if we accept the previous amendments, it is also about access to the curriculum and support staff. I have two points to make on that. The first is that paragraph 141 of the financial appraisal actually says that the special educational needs provisions of this Bill will have few manpower implications. So the Government already envisage that there will be practically no manpower implications.
I would argue that for children to be moved into mainstream schools they will need physical as well as financial support; they will need support staff; but there is no mention of that in the Bill. My noble friend asked the question in written form. He received a Written Answer. But the question still has not been fully answered. I ask formally at this Dispatch Box for the Minister to write to me, as the Opposition spokesman, with an estimate of the manpower implications of implementing the Bill. The plans will have to include the manpower implications.
The other point raised by the noble Lord is that LEAs will be given a period of time over which to achieve the plans. I accept that. That is what the Bill proposes. But the time is prescribed. At this moment LEAs have no idea what that prescription will be. I imagine that it will come from Whitehall and will therefore be Whitehall's view as to how long a school and an LEA will need to plan.
The noble Lord said that I am not impressed by additional resources. I have not said that at any stage of this Bill. I simply say that the noble Lord continually uses the extra finance as a defence. But he says it will not be spent on manpower because there are no manpower implications for meeting the special educational needs provisions in the Bill.
The noble Lord also talks about forward information to local authorities so that they will know on a school by school basis the precise sums of money they are to receive over the next two years. This is money that has been announced a number of times already and I have read all the information that went with each announcement. My understanding is that those announcements refer to physical alterations to buildings which will allow more access to people with special educational needs, particularly those with physical disabilities. So again I return to the point on manpower.
It was not a satisfactory answer. The plans should be costed in the interests of the LEAs themselves and certainly in the interests of the schools. It is in the interests of government to know what they want to happen at the community level for young people with special educational needs. Because the Government have set their face against the plans being costed, I believe that they are in the business of raising the hopes of young people, possibly only to be dashed because they cannot be realised. But I beg leave to withdraw the amendment.
moved Amendment No. 24:
Page 12, line 44, leave out from beginning to end of line 6 on page 13 and insert ("must prepare--
(a) an accessibility plan;
(b) further such plans at such times as may be prescribed.
( ) An accessibility plan is a plan for, over a prescribed period--
(a) increasing the extent to which disabled pupils can participate in the school's curriculum;
(b) improving the physical environment of the school for the purpose of increasing the extent to which disabled pupils are able to take advantage of education and associated services provided or offered by the school; and
(c) improving the delivery to disabled pupils--
(i) within a reasonable time, and
(ii) in ways which are determined after taking account of their disabilities and any preferences expressed by them or their parents, of information which is provided in writing for pupils who are not disabled.
( ) An accessibility plan must be in writing.").
On Question, amendment agreed to.
[Amendment No. 25 not moved.]
Clause 18 [Jurisdiction and powers of the Tribunal]:
My Lords, I can be brief. The idea was put forward that the ultimate form of compensation should not be allowed to those who are discriminated against within the school system. I do not agree.
When looking at the amendments on the Marshalled List I feel that Amendment No. 27 is slightly more appropriate to this point than my Amendment No. 26. I shall therefore give the noble Lord, Lord Ashley, my full support and curtail my remarks at this time. I beg to move.
My Lords, I am grateful for the comment made by the noble Lord, Lord Addington, who has been helpful on this issue. Perhaps I may remind the House that the original amendment was for financial compensation in addition to the educational remedy. Because I always try to oblige my noble friend the Minister, and lean over backwards to oblige her, I have narrowed it down so that now it merely asks for financial compensation to be paid in exceptional circumstances; in other words, when there is no educational remedy available.
My noble friend's response on Report was uncharacteristically feeble. I was astonished that she put it forward. I am hoping for a different response this evening. I am grateful to my noble friend Lady Wilkins for moving my amendment, as I was unwell at that time. However, I am not grateful to my noble friend the Minister, who exaggerated some points and ignored others. She said that allowing for financial compensation would fatally undermine the ability of the tribunal to continue successfully. That is a tremendous charge. To fatally undermine a tribunal means to destroy it. That is what my noble friend claimed on Report.
Here we have a case where the tribunal awards a few thousand pounds to a disabled child because it suffered discrimination. The self-destruct button is pressed and the tribunal goes up in flames because it is fatally undermined, according to my noble friend. That is the end of the tribunal system. Does my noble friend really believe that payments or financial compensation in exceptional circumstances, a limited number, would fatally undermine the tribunal? I do not believe that. If she does, she should tell us what she thinks about the other tribunals which give awards without fatal consequences.
She put forward another argument on Report, in that there would be a tendency to focus on the financial remedy, rather than the educational one. But in virtually all the cases, it is only when the educational remedy is not possible that financial compensation will be considered. So that point has no real substance. Surely, the focus should be on the discrimination or the alleged discrimination. If that is proved, it is up to the tribunal to decide the appropriate remedy. If my noble friend really envisages parents rejecting an educational remedy and wanting cash, I put it to her that it would be bizarre for them to debate the type of remedy that they want. That is a matter entirely for the tribunal.
As to my noble friend ignoring some of the points, nowhere has she responded to repeated questions from noble Lords as to why there should be different policies for students and schoolchildren. I shall listen eagerly tonight in case she has simply forgotten those questions. But she also ignored the question of human rights. She claims that there would be few cases where the educational remedy is not possible for individual children. So, my noble friend acknowledges that there will be some cases. That is an important admission. We have been saying all along that there will be a number of cases where it is not possible to prescribe the educational remedy. Although that will concern only a few children, what about their human rights? Is my noble friend seriously suggesting that because there are only a few of them, we flout their human rights? If she is on that tack, I am afraid that she is sadly mistaken.
It is probable that there will be human rights cases concerning some of those children. If a case is brought in future, as it will be, and is lost by the Government, what will my noble friend do then? She is ignoring those questions but she cannot ignore a judge's ruling. I think that new legislation will be urgently required when that human rights decision is made because the current wording is specific. That leaves the Government up a gum tree. If they do not accept the amendment, they will be in trouble in future. As usual, I am trying to help my noble friend and save a lot of trouble. I hope that she appreciates that.
I apologise for speaking for so long. My final point is made in the interests of flexibility. I suggest that the ability to pay financial compensation in the few cases I mention should be a matter for regulation and not on the face of the Bill. That degree of flexibility would help the Government and the children. I therefore commend the amendment.
My Lords, I rise to speak to Amendment No. 28, which is a slightly different amendment. I do so on behalf of the Special Educational Consortium, which put it forward. On the last occasion the noble Baroness, Lady Wilkins, spoke to the amendment. However, on Tuesday afternoon when time was getting late she could not be found and I was asked to table it at the behest of the SEC.
The aim of tabling the amendment again is to try to tease out further the response given by the Minister on Report. The remedy available under the SEN and Disability Rights Tribunal could include taking account of personal hurt or experiences denied to a child who has been discriminated against or deciding on any changes that may be needed in the accessibility strategies and plans. The purpose of the amendment is to ensure that the discrimination does not happen again.
On Report, the Minister gave further reassurances that although the SEN and Disability Rights Tribunal had no power to order alterations to accessibility strategies and plans, the Secretary of State or the National Assembly for Wales would have the power to call in an LEA's strategy or a school's plan and ultimately direct it to take the necessary action if it were acting unreasonably and had not carried out its duties. If necessary, it would be able to apply to the court for a mandatory order to enforce its directions. She also made it clear that Ofsted and the DRC would have a role in that.
The Special Educational Consortium welcomed the reassurances but was concerned as to how the Secretary of State would come to hear of the inadequacies in the plans and strategies that would rectify individual instances of unlawful discrimination. Would it be left to individual parents to write to the Secretary of State or to the National Assembly following a successful appeal to the SEN and Disability Tribunal?
How would such a referral from the tribunal be made where it considers that there is an instance of unlawful discrimination? Would that be a referral to the Secretary of State? Would the Secretary of State refer it on to Ofsted and the Disability Rights Commission? In sum, how would the communication work between the different parties with responsibility and oversight for those actions? We would be grateful for further clarification.
My Lords, perhaps I may briefly return to the subject of compensation. I need to persist in my fear that one exceptional circumstance can only possibly be dealt with financially. I refer to the situation in which a child has already been removed from a school. In that circumstance there is no educational remedy. I believe that a financial remedy is probably the only one available.
My Lords, I am afraid that I shall disappoint my noble friend Lord Ashley of Stoke. We still believe that practical and educational remedies are the best form of redress for disability discrimination in schools. School-based education is the bedrock of what we do in later life, so it is vital that any educational problems are put right. Disabled pupils in schools are not being offered a second-best form of redress, and they are not being treated worse than disabled pupils and students in further, higher or adult education; they are just being treated differently.
My noble friend asked for the reasons for that different treatment. We have taken an institutional approach to disability duties. The nature of the relationship between a pupil and his or her school and that of a student and his or her college are rather different. Schools have a SEN framework that provides for special educational needs. Colleges have no such formal framework. Therefore, the disability provisions must provide relatively greater protection. There is no SEN tribunal operating as far as the post-school sector is concerned.
As I explained on Report, we believe that allowing for the possibility of financial compensation, even in exceptional circumstances, would undermine the ability of the tribunal to operate as successfully in disability cases as it has done in SEN cases. My noble friend Lord Ashley will perhaps note that I am not using the word "fatally" this time; I am simply saying that it would undermine it. Perhaps I went a little too far on the previous occasion. If financial compensation were available in addition to other remedies, the tendency would be to focus on the financial rather than the educational remedy and make less likely any positive change to the child's educational experience.
Where discrimination occurs in a school setting, we agree that there must be an appropriate remedy which takes account of the discriminatory behaviour. But there is another consideration--how best to ensure that people will seek that remedy. The importance of school education is such that the forum in which the remedy is to be sought must be one in which parents feel empowered to exercise their rights to challenge discrimination. Discrimination is destructive whenever it happens, but the repercussions of discrimination suffered whilst at school may last a lifetime. We must ensure that parents feel able to seek a remedy for their child. That is a necessary precursor to obtaining the remedy.
As I have said before, we want to make sure that the informality and user-friendliness of the tribunal is preserved. Giving the tribunal the power to award any kind of financial compensation would threaten to overturn the concept of the tribunal being user-friendly and being informal. Educational remedies will ensure that the money spent by LEAs and schools will go to benefit the child in the best possible way by directly improving his or her educational experience.
There will be very few cases where no educational remedy for the individual child is possible. But even in these cases, the tribunal can acknowledge their experience by making a declaration that unlawful discrimination has occurred--I hope that responds to the noble Earl--and direct an apology and a change to policies, practices and procedures to ensure that the school or the LEA does not discriminate in that way again. Children who have been discriminated against have said to me and to others that they want two things: first, an apology, and the Bill allows for that; and, secondly, they are concerned that the discrimination should not happen again. The Bill also allows for that.
I turn to Amendment No. 28. The first two factors that the amendment seeks to insert are matters for which the Bill already provides. The third factor is different. The tribunal will not have the power to order LEAs or schools to make changes to their strategies and plans. The tribunal operates in a child-centred and informal way, and asking it to review the operation of a strategic duty, such as the duty to plan, would sit badly with this.
There are three mechanisms that relate either to the enforcement or to the monitoring of the planning duty. I hope this answers the question of the noble Baroness. First, enforcement of the duty to plan will, in the first instance, be by the Secretary of State in relation to England, and the National Assembly for Wales in relation to Wales. The Secretary of State or the National Assembly will have the power to call in an LEA's strategy or a school's plan and will ultimately direct it to take the necessary action if it is acting unreasonably or has not carried out its duties. If necessary, they will be able to apply to the court for a mandatory order to enforce their directions.
The noble Baroness wondered who might refer cases to the Secretary of State. Parents and others can look at the plan and complain directly to the Secretary of State. The DRC could decide to carry out an investigation. Plans will be monitored by the department. Therefore, the Secretary of State's attention could also be drawn to deficient plans by officials.
Secondly, the Ofsted and other relevant inspection frameworks for LEAs and schools will form another layer of monitoring the duty.
Thirdly, the DRC will have a role in monitoring the duty too. As I have just mentioned, it could, if it thought fit, conduct a general investigation into the operation of the duty which could lead to recommendations for change.
I hope that what I have said will persuade the noble Lord to withdraw his amendment.
My Lords, when I was brought up as a beautiful innocent choir boy, I was always taught that only the good Lord was infallible. Tonight my noble friend has proved that she is as fallible as the rest of us. I am sorry that she has not seen fit to accept this very constructive amendment. However, I am glad that she has seen the error of her ways and removed the word "fatally". That was very wise indeed. I am sorry that my noble friend opposed the amendment. I wish her God's speed with the clause and, indeed, with the Bill.
moved Amendments Nos. 29 to 31:
Page 20, line 35, leave out ("in the exercise of a power conferred, or").
Page 20, line 41, leave out ("the exercise of the power or").
Page 21, line 14, leave out ("the exercise of the power, or").
On Question, amendments agreed to.
Clause 25 [Interpretation]:
My Lords, we return to disclosure, a subject that we have dealt with on and off. Previously, when I moved the amendment, I agreed that there was an amendment regarding the school system which was getting in the way. That allowed for slightly different circumstances.
Amendments Nos. 33 and 34 allow for adults in the further and higher education sectors. We should look at these issues by themselves. The amendments refer to adults and to the situation where an opportunity has to be given to inform those sectors so that plans that help can be implemented. Before, we heard the Minister helpfully say that there will be implementation policies. Such policies will not extend to the support structures in the case of higher education. The plans have to be implemented for students, individuals and adults in their own right. I suggest that the Minister should look at the matter again. That will ultimately save time and save people running around and desperately trying to chase the right help and support. That is surely what it is all about. I beg to move.
My Lords, my noble friend will have heard my comments in Committee and on Report endorsing what the noble Lord has just said. He has been very constructive and helpful on the Bill and I hope that my noble friend will accept the argument this time.
My Lords, the amendments seek to provide that an institution must have allowed disclosure before it can be deemed not to be liable under either the less favourable treatment duty or the reasonable adjustment duty because it does not know and could not reasonably be expected to have known of a person's disability. I am very sympathetic to the intention of the amendments, but I believe that they are unnecessary.
A post-16 provider would only be able to rely on the defence which the clause provides if it did what could reasonably be expected of it to acquaint itself with whether or not its students and prospective students have a disability.
Most colleges and universities should have, and indeed already do have, procedures in place to try and ascertain if a student or prospective student has any disabilities or requirements. In many instances there are opportunities on the admissions form, such as a tick-box or at the admissions interview, to declare a disability or the need for extra support. This self-identification can then form the basis for a discussion with a student as regards his or her needs and how they will be met.
I am happy to endorse such practices and to state our expectation that they should become universal. I accept the view expressed by the noble Lord that they are not universal at present and that more could be done. We would like the Disability Rights Commission to include relevant examples of good practice in the code. However, we should also look beyond the effects of this Act. To that end, I am now making a commitment that my department will commission good practice guidance to post-16 providers on what steps to take to ascertain the disabilities of their students. We shall involve bodies with expertise in this area in the drawing up of such guidance and seek to ensure that it is widely disseminated, including through relevant guidance produced by other appropriate bodies. I am convinced that we do not need to make a specific provision on the face of the Bill, although I should like to reiterate that we want institutions to take this responsibility seriously.
In the light of what I have proposed, I hope that the noble Lord will feel able to withdraw his amendment.
My Lords, although that response might not represent route A, route B can often get one to the destination. I believe that the noble Baroness has suggested route B, and that possibly even route C will be open to us. We shall have to monitor these procedures to ensure that they are undertaken properly but, realistically, we have progressed as far as we can as regards this Bill. I beg leave to withdraw the amendment.
moved Amendment No. 35:
Page 28, line 1, leave out from ("(1),") to end of line 20 and insert ("a responsible body must have regard to any relevant provisions of a code of practice issued under section 53A").
On Question, amendment agreed to.
[Amendment No. 36 not moved.]
My Lords, I shall begin by saying that I am most grateful for the correspondence I have received from the Minister in connection with my amendments, generated in Scotland. I am always interested in the ways in which this Parliament legislates for Scotland within the reserved powers. To that end, I seek to improve the clarity surrounding such legislation.
Amendment No. 38 has been retabled in response to our debate in Grand Committee. The noble Lord, Lord Davies of Oldham, gave me some hope that it might be accepted. Since then, the noble Baroness has written to me explaining why the words, "as the case may be" are more appropriate than my amending words, "in Scotland". The noble Baroness stated that there will be "no ambiguity" about the powers of which courts are being described. She is correct, at least in the mind of a constitutionally well-informed reader. However, I would respond by insisting that it would be more helpful to general readers to insert the words "in Scotland".
It is likely that a Scottish reader would recognise the term "Court of Session" to describe the highest civil court in Scotland and would not confuse it with the High Court of Justiciary. However, although the use of the term, "High Court" is meaningful to English and Welsh readers, the use of "Court of Session" may not be so. Rather than use the unhelpful phrase, "as the case may be", why will not the Minister adopt the term, "in Scotland"? It would ensure absolute clarity.
The term has been used earlier in the Bill, specifically in Clause 30(1) at line 23. Here the words have been used to differentiate legal terminology used in the two distinct legal systems:
"claim in tort or (in Scotland) in reparation for breach of statutory duty".
I hope that the Minister will relent for the sake of clarity.
Further amendments tabled in my name have been grouped with Amendment No. 38. Amendments Nos. 40 and 42 return us to the question of how the codes of practice will be written. I fully accept that the Disability Rights Commission will write the codes of practice for schools and, separately, those for universities and colleges. At the end of our earlier debate, I expressed the view that there should be separate chapters for the three countries in both of the codes of practice for the purpose of ensuring that a coherent description of the new anti-discrimination procedures will be fully understood in the context and the terminology of the three systems of education.
I am anxious about the composition of the working groups charged with drawing up the codes within the DRC. Can the Minister give an assurance that there will be a separate Scottish working group rather than merely a couple of Scots tacked on to the English and Welsh working group? Furthermore, I hope that the working group will be instructed to write in the codes separate chapters covering Scotland.
I shall not move Amendment No. 41, which has been included in this grouping.
Finally, I shall turn to Amendment No. 44. First, I must confess to an error in the text. The amendment should refer to Sections 14 and 15. I apologise to the House that this amendment was not correctly retabled, but I hope that we shall be able to discuss the principle.
The amendment returns us to an earlier debate in Grand Committee concerning whether it would be a good idea to make clear on the face of the Bill the fact that Sections 14 and 15, which impose a duty to plan ahead for accessibility, do not apply in Scotland. I contend that it makes good sense to ensure that the reader is absolutely clear about the status of Sections 14 and 15. At present they apply only to England and Wales, but they lie marooned in a sea of United Kingdom legislation.
When replying to this amendment in Grand Committee, the noble Lord, Lord Davies of Oldham, was at pains to point out that it was clear from the content and context of the sections that they could apply only to England and Wales. I can accept that argument as being technically correct, but it is far too obscure. A similar argument was advanced as regards Part I of the Bill; that is, that it can apply only to England and Wales because it amends England and Wales education Acts. I can accept that explanation as being technically correct but, once again, it is obscure.
I have limited experience of the subtleties of legislation, but the position is now clear because the Minister has explained it to me. However, not only do most people not have much experience of reading legislation, the Bill is obscure as regards the legislative task that appears to await the Scottish Parliament, should it wish to legislate for such a planning duty--although so far the Scottish Executive has not committed itself. The only way that a citizen would know that Sections 14 and 15 do not apply to Scotland would be by having an in-depth knowledge of Schedule 5 to the Scotland Act 1998 and thus being able to determine that education is not one of the many areas reserved for the United Kingdom Parliament. Furthermore, an in-depth knowledge of education Acts would also be necessary.
Why do not Ministers want people in Scotland to be able to understand easily and accurately this piece of United Kingdom legislation? What advantage could possibly be gained by denying this straightforward clarification? I beg to move.
My Lords, may I say that I warmly support Amendment No. 38? The words "as the case may be" leaves the matter a little obscure. Obviously, Scotland should be referred to, and the noble Earl, Lord Mar and Kellie, is correct in moving his amendment, which I hope the Government will accept. The noble Earl has also tabled Amendments Nos. 40 and 42, and I hope that the Government will consider them sympathetically.
My Lords, I, too, rise to support the noble Earl, Lord Mar and Kellie, first, because he has made a powerful case and, secondly, because those who have to read the legalese are left in great confusion about what does and what does not apply to Scotland. As the noble Earl said, people need to have an acute knowledge of the small print of the schedules before the matter makes any sense. His points on Clauses 14 and 15 were well made, and would make explicit what does and what does not apply in Scotland.
My Lords, I am grateful to the noble Earl, Lord Mar and Kellie, for the considerate way in which he spoke to his amendments. I remember that he exercised a self-denying audience one early morning, for which all noble Lords were duly grateful. He certainly deserves as full a response to his amendments as I can give. My noble friend wrote to him about Amendment No. 38, following the Committee stage.
The phrase "as the case may be" is in the Disability Discrimination Act, which is why it has been replicated in the Bill. I understand the point made by the noble Earl that things could be made a little clearer by referring specifically to Scotland. We have been guided by the Disability Discrimination Act, and there is a general presumption in statutory construction that Acts passed by the United Kingdom Parliament are intended to extend to the whole of the UK, unless there is an express or implied provision that part of the UK is to be excluded. Clearly, Scotland is not intended to be excluded from this legislation, which is why the phrase appears in the Bill in that way. I respect the support of the noble Lord, Lord Renton, for the amendment. He may be suggesting that the phrase is perhaps a little less felicitous than it might be.
My Lords, indeed it did, but we have followed the phraseology of the Disability Discrimination Act in this Bill because it relates to the main principles behind that Act, in so far as it refers to education.
Remedies in cases of alleged discrimination on grounds of disability should be available in the Court of Session in Scotland and in the High Court in England and Wales. The amendment is intended to remove a supposed ambiguity in the reference to the "High Court" on the grounds that such a court also exists in Scotland. However, we do not think that there is a possibility of confusion. The High Court in Scotland is the nation's supreme criminal court, and does not hear civil actions. On the other hand, the Court of Session is concerned only with civil proceedings, such as may arise out of the provisions of Clause 30 of the Bill. The term "Court of Session" is specific to the Scottish legal system, rendering the possibility of anyone being misled even more unlikely.
Turning to Amendments Nos. 40 and 42, the Bill already confers power on the Disability Rights Commission to produce either Great Britain-wide codes, separate codes for England and Wales and for Scotland, or Great Britain-wide codes with separate chapters for Scotland. Disability discrimination legislation in education is new, so we need flexibility to ensure that we can pursue the option that will give the most sensible and effective result. However, as I explained in Committee, our present intention is to have two Great Britain wide codes, with one covering schools duties and the other covering post-16 duties.
The codes will underpin Great Britain-wide legislation. While the education and legal systems in which the new duties apply are different, the duties themselves will be the same.
I do not think that there is a fundamental difference between us. We both want codes that are relevant and which can easily be understood by users. However, there is a difference as to the best starting point to enable us to achieve this. A separate Scottish code would not be substantively different in legal terms from an England and Wales code. Therefore, we think that the best way to ensure the necessary coherence is to begin with codes for Great Britain. I know that the Minister for Disabled People has recently met with the lobby group, Children in Scotland, and others to discuss that point and that they were reassured about our intentions. I understand that Children in Scotland was particularly attracted to the possibility of having Scottish chapters in a Great Britain code.
The noble Earl also asked about the preparation of these codes. The DRC is a Great Britain-wide body with a commissioner appointed specifically to represent Scottish interests. We have asked the DRC to consider how to ensure that the codes are made relevant to users in different educational systems. That might include the language used and the choice of examples. Experts in Scotland will certainly be on the drafting groups for both codes. My experience of Scottish contributions to any deliberations is that they are never sold short in their presentation of the needs of that country. There will be a Great Britain-wide consultation on the draft codes.
We do not rule out the possibility that the DRC might produce separate codes for Scotland, or that Great Britain codes might include separate chapters for Scotland. The need for that will emerge as part of the drafting process. We want to retain the flexibility that exists in the Bill to allow us to consider the most sensible option.
Turning to Amendment No. 44, I fully understand its intention. The noble Earl was extremely articulate in Committee about the necessity for it, and I responded to his representations at the time. Of course, we considered his further representations very carefully, but we do not accept that the amendment is necessary. The extent of the various provisions in the Bill is entirely clear. On the basis of my explanation, I hope that the noble Earl will withdraw his amendment.
I received the answers that I expected, and I am sure that the Minister is technically correct. It is true that the term "Court of Session" is well known. It is not only pre-devolution, but pre-Union. I am weakly reassured about the Scottish element in the codes of practice. I fully take the point that the duties will be the same, but they need to be expressed in a Scottish context. Again, I am weakly reassured that there will be Scots in the drafting groups. These codes of practice will eventually come before us for approval, so we shall have the opportunity to say what we think about the handiwork of the DRC.
With regard to Amendment No. 44, I conclude by saying that the struggle for clarity in reserved powers legislation must go on. The Minister is undoubtedly technically correct but not clear. Having said that, I beg leave to withdraw the amendment.
My Lords, government Ministers and noble Lords will know that I have some reservations about this clause. I was not involved in the detailed discussions on the Disability Discrimination Act nor the detailed discussions on this particular part of the Bill. Nevertheless, I remain concerned.
The clause allows for owners of buildings which are let for educational purposes to be compelled to make alterations to their buildings, even in situations where they disagree and, for one reason or another, do not want to make those alterations. Many defences are available but they are somewhat obscure as they are spelt out in legislation.
The noble Baroness was kind enough to write to me on this issue and she even included some of the extracts from the Disability Discrimination Act code. I have one or two questions on that.
In the noble Baroness's letter, there is the following sentence:
"Guidance contained in the existing Code of Practice on Part II of the DDA makes it clear that it would almost certainly be reasonable for the landlord of a building to withhold his consent to a particular adjustment which was likely to result in a substantial permanent reduction in the value of the landlord's interest in the premises".
Some five years on, we should have some knowledge of the working of the Act. In the light of that, what is "substantial", how is it judged and who makes that judgment?
I turn to the code itself. Paragraph 4.37 deals with the need to obtain statutory consent for some building changes. It states:
"Employers might have to obtain statutory consent before making adjustments involving changes to premises. Such consents include planning permission, listed building consent, scheduled monument consent and fire regulations approval. The Act does not override the need to obtain such consents ... Therefore, an employer does not have to make an adjustment if it requires a statutory consent which has not been given".
Is there a statutory obligation on the owner of the property to seek such consent?
My final point is on the final paragraph of the noble Baroness's letter. She said:
"You also asked whether the existing provisions of the DDA cover only minor alterations", and then there is a full stop in the letter, which is the point of my question because the next sentence says:
"The answer is that these provisions are not so limited".
Does "these provisions" refer to the provisions of the DDA act or the provisions of this Bill? In other words, was I right in my assumption that the DDA act deals with only minor alterations and the provisions of this legislation deal with both minor and major alterations? I beg to move.
My Lords, this Bill consists mainly of legislation by reference to previous legislation. It is an amending Bill on a large scale. I agree with the comments made by my noble friend Lady Blatch. However, I make an impassioned plea to the Government that when this Bill has reached the statute book, efforts will be made as soon as possible to consolidate all this important legislation.
My Lords, I am sorry that the noble Baroness is still not quite satisfied with my responses. As I explained on Report and in my letters, Section 28W in Clause 31 is essential to ensure that a provider of post-16 education cannot use the fact that a building is leased as an excuse not to make reasonable adjustments. Without this clause, the physical adjustment duty really would be very much weaker. As regards leasehold premises, the provisions in new Section 28W mirror those contained in Parts II and III of the DDA.
During our discussions on Report, the noble Baroness was particularly concerned that the provisions in Clause 31 would allow a college to make major changes to the structure of a leased building; for example, the major strengthening of floors or the removal of Victorian architectural features. As I explained subsection (2)(c) of new Section 28W allows for a landlord to withhold his consent to the proposed alteration if it is reasonable for him to do so.
The existing code of practice on Part II of the DDA includes guidance which makes it clear that it would almost certainly be reasonable for the landlord of a building to withhold his consent where it was likely to result in a substantial permanent reduction in the value of the landlord's interest.
I know that the noble Baroness is concerned to know how that provision has operated under the DDA. I am afraid that I cannot provide her with very much information about that but I am happy to write to her about it.
The code also clearly states that where a particular adjustment would cause considerable disruption or inconvenience to other tenants, the landlord would be likely to be acting reasonably in withholding consent. We expect the DRC to want to follow the guidance which it has already given in the Part II code when preparing the new disability code of practice.
The noble Baroness also asked whether the existing provisions of the DDA cover only minor alterations. The existing provisions are not limited to minor alterations.
As I have tried to make clear, whether consent can be withheld or whether conditions can be imposed where consent is given are governed under the existing DDA provisions by the test of reasonableness. I hope that all the detailed information that I have provided here will enable the noble Baroness to withdraw her amendment. However, I shall write to her about that issue to which I do not have an answer.
My Lords, I should be grateful for a fuller written response to those questions which have not been answered. But "these provisions" being more limited refers to the provisions of the DDA as opposed to those contained in this legislation. They are mirrored and there is no distinction between the two. Secondly, I should be grateful if the noble Baroness will also cover in the letter whether there is a statutory obligation to seek consent. In the meantime, I beg leave to withdraw the amendment.
moved Amendments Nos. 45 to 63:
Page 38, line 10, at end insert--
(""amendment notice" has the meaning given in paragraph 2A;").
Page 38, line 11, leave out from ("324") to end of line 13.
Page 38, leave out lines 21 to 23.
Page 38, line 24, leave out ("sub-paragraphs (1) and (2) are") and insert ("that is").
Page 38, line 26, leave out ("or amended statement").
Page 38, line 29, leave out from ("statement") to end of line 31.
Page 38, line 32, leave out ("that subsection") and insert ("section 324(4)").
Page 38, line 33, leave out from beginning to first ("the") in line 34 and insert--
("Amendments to a statement
2A.--(1) A local education authority shall not amend a statement except--
(a) in compliance with an order of the Tribunal,
(b) as directed by the Secretary of State under section 442(4), or
(c) in accordance with the procedure laid down in this Schedule.
(2) If, following a re-assessment review, a local education authority propose to amend a statement, they shall serve on the parent of the child concerned a copy of the proposed amended statement.
(3) Sub-paragraphs (4) and (5) of paragraph 2 apply to a copy of a proposed amended statement served under sub-paragraph (2) as they apply to a copy of a proposed statement served under paragraph 2(1).
(4) If, following a periodic review, a local education authority propose to amend a statement, they shall serve on the parent of the child concerned--
(a) a copy of the existing statement; and
(b) an amendment notice.
(5) If, at any other time, a local education authority propose to amend a statement, they shall proceed as if the proposed amendment were an amendment proposed after a periodic review.
(6) An amendment notice is a notice in writing giving details of the amendments to the statement proposed by the authority.
Provision of additional information
2B.--(1) Sub-paragraph (2) applies when a local education authority serve on a parent--
(a) a copy of a proposed statement under paragraph 2,
(b) a copy of a proposed amended statement under paragraph 2A, or
(c) an amendment notice under paragraph 2A.
Page 38, line 39, leave out ("(6)") and insert ("(2)").
Page 39, line 2, leave out from ("under") to ("which") in line 4 and insert ("paragraph 2A, or
( ) on whom an amendment notice has been served under paragraph 2A").
Page 39, line 4, leave out ("the name of a school") and insert ("--
(i) the type or name of a school or institution, or
(ii) the provision made for the child concerned under arrangements made under section 319,").
Page 39, line 7, leave out ("2(6)") and insert ("2B").
Page 39, line 21, after second ("statement") and insert (", or of the existing statement and of the amendment notice,").
Page 39, line 31, leave out paragraph (a) and insert--
("(a) after "paragraph 2" insert ", or on whom a proposed amended statement or an amendment notice has been served under paragraph 2A,";").
Page 39, line 33, leave out ("amended statement") and insert ("the statement as it will have effect if amended in the way proposed by the authority").
Page 39, line 39, leave out ("2(6)") and insert ("2B").
Page 39, line 44, after ("statement") insert ("following service of a proposed amended statement under paragraph 2A").
Page 39, line 46, at end insert--
("(2B) If a local education authority amend a statement following service of an amendment notice, the amendments may be those proposed in the notice or amendments modified in the light of the representations."").
Page 40, line 36, leave out ("2(2)") and insert ("2A").
On Question, amendments agreed to.
Schedule 8 [Minor and Consequential Amendments]:
moved Amendments Nos. 64 to 66:
Page 52, leave out line 2 and insert--
("14.--(1) Paragraph 3 of Schedule 26 (manner and timing of assessments under section 323) is amended as follows.
(2) In sub-paragraph (2), for "paragraph 10" substitute "paragraph 2A".
(3) For sub-paragraphs (3) and (4)").
Page 52, line 22, at end insert--
("School attendance orders: amendment of statement of special educational needs
.--(1) Section 441 (amendment of statement on service of school attendance order) is amended as follows.
(2) In subsection (3)(a), omit "in accordance with paragraph 10 of Schedule 27".
(3) After that subsection, insert--
"(3A) An amendment to a statement required to be made under subsection (3)(a) shall be treated for the purposes of Schedule 27 as if it were an amendment proposed following a periodic review (within the meaning of that Schedule)."").
Page 53, line 24, at end insert--
("( ) In Schedule 30 (minor and consequential amendments), omit paragraph 186(2)(b).").
On Question, amendments agreed to.
Schedule 9 [Repeals]:
moved Amendments Nos. 67 and 68:
Page 54, line 9, column 3, at end insert--
("In section 441(3)(a), the words "in accordance with paragraph 10 of Schedule 27".")
Page 54, line 25, column 3, at end insert--
("In Schedule 30, paragraph 186(2)(b).")
On Question, amendments agreed to.
An amendment (privilege) made.
On Question, Bill passed, and sent to the Commons.