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

Part of the debate – in the House of Lords at 7:00 pm on 1 March 2001.

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Photo of Lord Ashley of Stoke Lord Ashley of Stoke Labour 7:00, 1 March 2001

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.