Clause 1 - Education in mainstream schools of children with special educational needs

Special Educational Needs and Disability Bill [Lords] – in a Public Bill Committee on 27th March 2001.

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Amendment proposed [this day]: No. 1, in page 1, line 9, at end insert—

`(1A)For each such child the Secretary of State has a duty to make arrangements to secure that the educational needs of that child are paramount.'.

Question again proposed, That the amendment be made.

Photo of Mr Bill O'Brien Mr Bill O'Brien Labour, Normanton 4:30 pm, 27th March 2001

I remind the Committee that with this we are taking the following amendments: No. 2, in page 1, line 14, leave out from `parent' to end of line 15.

New clause 1—Duty of education providers—

`.—It shall be the duty of all providers of education under the provisions of this Act and of all professions and ancillary agencies providing services in connection with special educational needs to have regard to—

(a) the educational needs of the particular child; and

(b) the need for partnership working in order to ensure efficient and appropriate educational outcomes.'.

Photo of John Hayes John Hayes Shadow Minister (Education) (Schools)

After a good lunch and half a bottle of Chateau Musar, I feel invigorated and somewhat better equipped to deal with this testing subject. I did not welcome you to the Chair, Mr. O'Brien, but I should like to do so now and apologise for not doing so earlier.

To refresh the memories of Committee members, I was about to make three points on the amendment that we tabled relating to the special educational needs of the child. I think that I dealt adequately with my concern about social, cultural and moral issues—I at least paraphrased Baroness Blackstone, if I did not quote her directly—and the possible conflicts that might arise with educational interests. I said that there would not necessarily, but might possibly, be a conflict.

I then moved on to talk about those whom I described as inclusion zealots. I hope that I presented my argument in a balanced way by saying that I was well aware of the fact that there are zealots on both sides of the argument, but fortunately none of them resides in Committee.

My third point is about the pragmatists who favour inclusion. There are those who favour integrating children into the mainstream at all costs, and those people—this was raised earlier both by Opposition Members and, by implication at least, by Labour Members in relation to the response to the Green Paper—who regard the Bill as an opportunity to amend provision in a way that goes against choice and diversity. Those people might be motivated by causes less noble than the interests of children with special needs.

Let me put that more candidly, because I have been speaking broadly to avoid offence. Some local authorities will view the measure as a cost-cutting exercise. The Committee knows that that is not the case, and that integration is not a cheap option. In fact, one might argue that it is a more expensive option, if the necessary resources are put in place in mainstream schools to make inclusion a success. However, all too often that is not the case and the necessary resources are not put in place. We all know of schools that are absorbing children with special educational needs without the means to do so properly. I am referring to physical issues, such as access. We have had some good news about that from Government, and reference was made earlier to the use of information technology in that regard, a subject in which I am extremely interested.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I do not defend cost cutting generally, although cuts are not usually the fault of the local education authority and often result from Government under-funding, but how would the hon. Gentleman distinguish a cost-cutting exercise from the efficient provision of services?

Photo of John Hayes John Hayes Shadow Minister (Education) (Schools)

The hon. Gentleman will be aware that that is one of the reasons why we tabled the amendment. There is a real danger that the efficient education of other children might be used by those who view the matter more cynically as an excuse—

Photo of John Hayes John Hayes Shadow Minister (Education) (Schools)

I would not want to condemn accountants because, although I am not one, I have one, without whom my financial affairs would be in more difficulty than they are at the moment. However, it is true to say that an accountant mentality, if applied to education, would carefully study the costs—what the hon. Gentleman described as efficiencies—of integration, and might conclude that the expense could not be borne satisfactorily by local council taxpayers. That charge could equally be made against the provision of special education. For example, there is a special school in my constituency with about 80 pupils, and if those less sympathetic than us to the needs of special education provision were to consider it ruthlessly and ask whether those pupils were costing more than they ought, they might want to make economies.

We know from responses to the Green Paper—we heard this from the hon. Member for Colne Valley (Kali Mountford) and from my hon. Friend the Member for Tewkesbury (Mr. Robertson)—that local authorities have already seized the initiative, to put it kindly, and even without the Bill have conducted exercises that can only be described as driven by a cost-cutting accountancy mentality, rather than by a robust desire to defend the interests of special needs children.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I am sorry to press the hon. Gentleman, but will he explain how he differentiates such behaviour from the continuing efficiency savings in the public sector that his party advocated in higher education, and on which the Government have continued to insist? I do not want to make a judgment, but that mantra is often chanted by Conservative councillors in local education authorities.

Photo of Mr Bill O'Brien Mr Bill O'Brien Labour, Normanton

Order. Will the hon. Member for South Holland and The Deepings (Mr. Hayes) turn round and address the Chair?

Photo of John Hayes John Hayes Shadow Minister (Education) (Schools)

I apologise, Mr. O'Brien. I was seduced by the hon. Member for Oxford, West and Abingdon (Dr. Harris) into addressing neither the Chair nor, frankly, the subject. We certainly do not want to enter a philosophical debate about the efficiencies of Conservative Administrations compared with those run by Liberal Democrats. However I am reminded of a former Liberal leader, Lloyd George, who said that one cannot succeed in politics if one relies too much on one's conscience. That policy has permeated Liberal party thinking throughout history, but it certainly does not permeate Conservative party thinking.

There is a balance to be struck between the proper use of council taxpayers' and general taxpayers' resources and the best possible provision for special needs children. My point is that unless we are careful and stipulate clearly that the educational needs of the child must come first, there are those on the zealous wing of integration—inclusionists—and on the rather less noble and less well-meaning wing of cost-cutters who may look for the cheapest rather than the best route to provide special needs education.

Photo of Mr Harry Barnes Mr Harry Barnes Labour, North East Derbyshire

Can the hon. Gentleman tell us when the Opposition changed their mind on that matter and decided to table amendment No. 2? On Second Reading, the hon. Member for Maidenhead (Mrs. May) said:

``It is therefore right that the Bill includes consideration of the provision of efficient education for other children as well as parents' wishes.''—[Official Report, 20 March 2001; Vol. 365, c. 224.]

Therefore, the provision that the amendment would remove was supported by the Opposition on Second Reading. What was the Opposition's reasoning then, and why has it changed?

Photo of John Hayes John Hayes Shadow Minister (Education) (Schools)

I had not even got on to amendment No. 2; the hon. Gentleman anticipates my remarks. I was merely sailing through amendment No. 1. I am coming to amendment No. 2—I alluded to it, but I have further points to make about it. As my hon. Friend the Member for Daventry (Mr. Boswell) pointed out, amendment No. 2 is a probing amendment to enable us to debate the matter more fully. However, I was speaking about amendment No. 1 and the need to write into the Bill that the educational needs of the child are paramount.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

The hon. Gentleman did not answer my previous question. Without making a judgment about efficiency savings—although I generally do—is the hon. Gentleman in favour of enforcing efficiency savings in higher education and other public sectors, while disapproving of them, for better or worse, in special educational provision?

Photo of John Hayes John Hayes Shadow Minister (Education) (Schools)

With your characteristic generosity, Mr. O'Brien, I know that you are indulging the hon. Gentleman, but I do not share your indulgence, so I do not intend to get into a debate on higher education.

We believe that it is vital that children's educational needs, and therefore their interests, are enshrined in the legislation. The hon. Gentleman is right to say that educational needs and interests are different, but they overlap.

Without desiring to repeat what my hon. Friend the Member for Daventry (Mr. Boswell) said, and certainly with fewer classical allusions and metaphors, as I do not share his degree of wisdom, wit or reading—

Photo of Tom Levitt Tom Levitt Labour, High Peak

Will the hon. Gentleman give way?

Photo of John Hayes John Hayes Shadow Minister (Education) (Schools)

No. I must make a little progress.

As my hon. Friend explained with his classical metaphors, some have argued that amendment No. 1 would have a perverse effect. Those people include responsible spokesmen of the lobby groups, pressure groups and charitable organisations that do such a fine job in defending and promoting the interests of disabled people, especially special needs children. They argue that the amendment could be used to prevent inclusion into mainstream schools. I understand the argument, and know that the problems will be difficult to resolve. As I said, they are likely to be resolved by tribunals, and may go to court. If it takes such measures to ensure that children receive the best education possible to allow them to achieve their potential—if that is the length to which we must go to protect arguably the most vulnerable children—so be it. In our balance of judgment, it is important that such a provision is a key part of the legislation.

Amendment No. 2 is about the efficient education of our children, to which the hon. Member for North-East Derbyshire referred. Our amendment might seem to fly in the face of our proper concern that other children in schools are well educated. I have no great difficulty with the notion that children with, for example, emotional behavioural difficulties pose a problem for classroom teachers, who already do a difficult job. There is a strong argument for such children to be educated separately, not only in their interests, but in those of other children, who will be affected by their inclusion in mainstream.

We tabled the probing amendment because the relevant part of the Bill will undoubtedly be used as an excuse not to integrate, and therefore not to commit sufficient resources to children brought into the mainstream. The amendment is designed to ensure that the Government, through the Minister, clearly assure us that they are aware that the provision could be misused to block the integration of children into the mainstream. The ``efficient education'' of other children is a broad term. I do not want to be too cynical, as I am not a cynic—I am a romantic, as you know, Mr. O'Brien—but the term could be used cynically to frustrate the thrust of the legislation and the intentions of the Committee to do the best for children brought into mainstream schools.

I can tell the hon. Member for North-East Derbyshire that the amendment does not indicate a change of mind. It is simply an attempt to probe how the Government intend to overcome the possible misuse of the provision to frustrate their, his and our intentions.

Photo of Mr Harry Barnes Mr Harry Barnes Labour, North East Derbyshire 4:45 pm, 27th March 2001

Should not even a probing amendment be tabled on the basis that its provisions could be put into the legislation? Such amendments should not simply arouse a discussion around the topic, although that is part of the reason for them. There should be some logic behind the proposals that are made.

Photo of John Hayes John Hayes Shadow Minister (Education) (Schools)

If I were a logical man, I would not be here. I would be earning a lot more money doing a flash job in the City. I hope that the Minister, my hon. Friend and the hon. Gentleman are here because we are men of courage, conscience and vision—

Photo of John Hayes John Hayes Shadow Minister (Education) (Schools)

And women, yes. I was using the generic term, being neither a student nor a supporter of political correctness. I suspect that the hon. Gentleman knows very well, from his long experience on Standing Committees, that probing amendments are designed to enable proper and thorough debate of issues that otherwise would not be aired. The hon. Gentleman, with his great experience and wisdom, may have made that point tongue in cheek—I will put it no more strongly than that.

That brings me to my concerns about resources. Such concerns were aired extensively on Second Reading, and I do not want to repeat what was said then. They were also explored in the debate in the other place, and I particularly note the contribution to that debate made by Lord Ashley of Stoke, who, in moving an amendment, mentioned that the Royal National Institute for Deaf People had sent him some striking examples of unreasonable fears about children being included and resources being inadequate. He referred to teachers who refuse to wear neck loop microphones with a deaf child in the class, preventing that child from taking part in normal teaching and learning.

There are many examples that one could use to support our concern about resources. They centre on physical difficulties, such as the case I just mentioned, and on the problem of access, with which we are all familiar. The provision of appropriate information technology is also an issue, and I welcome the Government's commitment to that.

However, the concerns also centre on the skilling and support of teachers, because that builds the confidence of teachers in mainstream schools and allows them frequently to adapt their skills to educate children with particular needs. That matter has not received the judgment or the attention that it deserves from any Government since we began seriously to bring children into mainstream education, post-Warnock and after the Education Act 1981. It is not sufficient to say to a teacher, ``There's another child in the class, they have a statement, do your best for them.''

The particular needs of certain children must be considered most seriously. Those needs are not always straightforward. In the context of disability, we tend to envisage people with spinal injuries or with a permanent or visible disability, but when a teacher is dealing with different types of learning difficulty and physical impairment, the needs are complex, subtle and often changing. Teachers need to be skilled and supported so that they can identify those needs, have empathy with them and adapt their teaching styles and the learning process to deal with them properly. They must be able to support children with those needs.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

I am sensitive to my hon. Friend's points. Does he agree that it is crucial that teachers are provided with proper training in the induction process, because when children move from the more protected environment of a special school to a mainstream setting they may experience initial problems from which they never recover?

Photo of John Hayes John Hayes Shadow Minister (Education) (Schools)

My hon. Friend is right. History shows that children who are integrated into mainstream schools from special schools and have a bad experience in the first few weeks or months often end up returning to special education and never get back into the mainstream.

The induction process is critical, as is the age of the child. The Committee will remember that the Office for Standards in Education report that was referred to earlier in proceedings specifically dealt with the issue of children going from the primary sector into the secondary sector, and the difficulties that children without special educational needs often experience—particularly boys, according to the report—at that stage of their education. If a special educational need is added to that cocktail, there is the potential for a poisonous experience that will damage the child, and perhaps also deter teachers from dealing with future challenges regarding children with special needs.

We must support our teachers. That is the other reason why I am concerned about the issue of

``efficient education for other children''.

I fear that it could be used once again as an excuse not to provide sufficient re-skilling, retraining and resources to allow for the increase in the number of children who will be educated in mainstream classes in mainstream schools—hence, probing amendment No. 2.

New clause 1 brings me to the issue of dynamic special needs, which was not debated at great length in the Lords, and has not coloured our consideration of the Bill thus far. I am joint chairman of the all-party disablement group, and I should like to put on the record the fact that it does not share all my concerns about this issue. We have discussed it, and my views are not shared by the majority of members. I am also secretary of the all-party group on acquired brain injury—a subject in which I have taken an interest since I came to this House and before. The needs of a child who suffers from an acquired disability, and therefore acquired special educational need, can change dramatically during the course of his or her education.

Picture a child who is injured in an accident and who has been part of a mainstream school where he was making strong educational progress. At the age of 10, 11 or 12 he is suddenly disabled with a brain injury, and immediately he has very different educational needs, which are likely to be changing and dynamic but also subtle. He might have problems of concentration, temperament or unsuitable social behaviour, and it is difficult for a teacher, a parent or anyone associated with that individual to cope with and to understand those problems. His needs will change. For some of the time it may be in the interest of the child to be educated outside mainstream education. Later, he may return to his original school, if he has not by that stage moved into the age range for secondary school.

We should ensure that the Bill takes account of such dynamic special needs. Historically, our handling of that area of special needs education has not been a great success. There has not been sufficient flexibility to allow movement from the mainstream into special education and out again. Although that is fine for an unchanging need—typically, a physical disability such as the spinal injury which, once dealt with medically, establishes a need that does not alter a great deal over time—it is not suitable for the dynamic need associated with, for example, an acquired brain injury.

It is critical that agencies work together. All those involved need a co-ordinated and coherent approach in order to create the best possible opportunity for that child, and subsequently for that person as a young adult. I have put it in anonymous terms, but through my work in this field I have known many children and young people who have been through that experience.

Existing legislation does not go far enough, and the Bill does not deal adequately with that issue. I believe that most of those associated with special educational needs outside Parliament would agree with much of what I have said. I hope that new clause 1 will stimulate and encourage co-operation and communication such as I have briefly tried to outline.

I did not mention Ovid or Horace, but I may do so later, as I was reading about them during our long lunch break. I hope that the amendments are acceptable to the Government, as they are largely if not wholly constructive. They are not meant to damage or ruin the Bill; they are designed to improve and build on it. We have a sharp and genuine disagreement on amendment No. 1, but it is a disagreement about a common objective. That objective is to allow all children, regardless of where they start, the opportunity to achieve their potential. That is where we stand. I hope that the Committee will support the amendments.

Photo of Tom Levitt Tom Levitt Labour, High Peak

The hon. Member for South Holland and The Deepings started by saying that he would be brief. I am glad that he was; he has taken almost three quarters of an hour. I shall be considerably briefer. Indeed, I am prompted to speak only because I wanted to comment on three matters mentioned by the hon. Gentleman, and if I had tried to intervene, Mr. O'Brien, you might have got bored with me—and my spine might have taken quite a battering.

The hon. Gentleman mentioned the importance of skilling mainstream teachers for special needs. He was absolutely right, and I am sure that all hon. Members agree. However, he implied that it was not already happening, but it is. I bring fraternal greetings to the Committee from my mother. Until recently, she was a governor of Horton Lodge special school in Staffordshire. Coincidentally, since she ceased to chair the governing body, that school has received an excellence award and has been given beacon status because of its work in making its skills and training available to teachers dealing with special needs children in mainstream schools. I am sure that the Committee will want to commend the school—and the Department for recognising it and giving the school beacon status.

The hon. Gentleman and other Opposition Members seemed to imply that judgments would have to be made outside the school environment. Indeed, it was conceded on Second Reading that local education authorities would have a role to play in assessing the various demands. I commend them for that, but I am intrigued because the previous Tory Government passed legislation that made it unnecessary to have a local education authority. The fact that every LEA survived that change in legislation shows that the Tories were wrong; I am pleased that they have come back to the cause of LEAs.

I do not support the amendment, but I shall speak positively about the remarks of the hon. Member for South Holland and The Deepings on the proper role of special educational schools. I refer in particular to the special education of profoundly deaf children. I know the hon. Gentleman has great empathy with that group of children. Education authorities and the Department for Education and Employment will have real problems dealing with informed parental choice—I put it no stronger than that.

It is simply not good enough to leave parents to choose without knowing the full consequences and implications of what they are doing—for instance, parents who are profoundly deaf and use sign language and have a profoundly deaf child. It would be legitimate for that family to choose for the child to be brought up within a sign-language environment. That may not be the right environment for other profoundly deaf children, or for children with a lesser degree of hearing impairment. However, parents should have the opportunity to choose a sign language environment. I believe--my belief is not wholly shared across the special needs spectrum—that a child who can develop one language will be much better at picking up a second. If sign language is the natural language for that child, it should at least be given a chance to flourish before the introduction of written English.

Photo of John Hayes John Hayes Shadow Minister (Education) (Schools) 5:00 pm, 27th March 2001

The hon. Gentleman speaks with great integrity and knowledge on the subject. He acknowledged that I have a personal interest in the matter, apart from a philanthropic interest. When I was a member of an LEA in Nottinghamshire, I dealt with a case which was exactly as he describes—profoundly deaf parents with a profoundly deaf child, who fought to get that child into special education. I hope that the hon. Gentleman will agree that that could be a bridge into mainstream education. At the very least, it was necessary for the child to have a period of specialist education outside the mainstream to make crossing that bridge easier.

Photo of Tom Levitt Tom Levitt Labour, High Peak

I accept that point entirely. I said on Second Reading that the GCSE achievements of children with hearing impairments are considerably lower than those of children without such impairments. That suggests that, at some stage, the language environment has been the real issue at stake. I commend localities in which hearing children have been taught sign language as a way of better integrating a deaf child whose first language is sign language but whose parents have chosen to use the mainstream route. The important point is that parents should make informed choices. Having made those choices, they should have the opportunity to exercise them. That should be overseen by a local authority, and, when necessary, by mainstream teachers—as well as special teachers—who are well versed in the problems of children with special educational needs.

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

We have had a wide-ranging debate, and I shall try to address the wide range of issues that have been covered.

It would be useful if Committee members were to cast their minds back to the issue of partnerships. The hon. Member for Daventry rightly highlighted the need to establish partnerships to ensure that we obtain the best services for our children. My argument against including that provision in new clause 1 is that we are already making good progress in that area, which is exemplified by the use of speech language therapy, to which he referred. We have already considered how we can use the flexibilities introduced under the Health Act 1999 with the support that we have made available through the standards fund and piloted speech and language projects, which are aimed precisely at bringing together education and health. That allows education, health and social services to work in partnership, including pooling resources to provide a joined-up approach.

Through our regional partnerships, we have already championed a co-ordinated approach. In 11 areas, they have brought together local partners from health, social services, education, employment and the voluntary and private sectors, and are bearing fruit. From this April, we shall be taking a far more strategic approach, including improving the efficiency and effectiveness of the special educational needs provision and services. Regional partnerships are particularly championing inter-agency work locally and regionally. I should be happy to make available to the Committee copies of the initial impressions report on the work of those regional partnerships, which was produced by the evaluation team from Manchester university.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

I am grateful to the Minister for giving way at such an early stage in the proceedings. As she knows, I have a certain interest in those partnerships. I am sure that all members of the Committee would like to see the report. I wish to flag up a worry of the Royal School for Deaf Children in Margate, which has been passed on by my hon. Friend the Member for North Thanet (Mr. Gale). The head of the school writes:

``I have major concerns about the apparent lack of openness or an apparent lack of consultative and collaborative involvement of NASS (National Association for Independent and Non-Maintained Special Schools) and Voluntary organisations.''

I ask the Minister to reflect on that. I am sure that a copy of the letter can be made available to her. Will she ensure that such matters are properly tied up so that the partnerships have greater continuing and developing credibility?

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

The hon. Gentleman raises an important point. The involvement of such organisations is crucial, which is why the chief executive of NASS is on the national steering group for regional planning projects. I am willing to make the report available to the Committee, and the first two case studies arising from the regional partnerships, which focus on developing services for children and young people with autistic spectrum disorders in the west midlands and on the use of out-county and out-city provision in the east of England. I hope that the hon. Gentleman will recognise the significant progress that we are making in the important area of partnerships.

The hon. Member for South Holland and The Deepings spoke of his worry about acquired brain injury. I have had a productive meeting with organisations representing children with such injury. Following that meeting, we made arrangements for those organisations to establish a presence in our inclusion site to help to raise awareness. I agree with members of the Committee about the need for awareness among teachers about what is involved in working effectively and properly with children with different needs. We shall also include references in the guidance for health professionals on special educational needs that we are developing with the Department of Health. I hope that the hon. Gentleman accepts my assurance that we are talking practical steps to develop important partnerships.

Amendment No. 1 and new clause 1 have caused much key discussion on the need to safeguard the interests of children with special educational needs. It was suggested, although in a reasonably friendly manner, that the Government are not concerned about the needs or the interests of children with special educational needs. That could not be further from the truth. We believe strongly that amendment No. 1 and new clause 1 are unnecessary because, as the hon. Member for Oxford, West and Abingdon said, there are safeguards elsewhere that protect the interests of children with special educational needs. To reiterate an earlier point, that is one of the reasons why the Special Educational Consortium supports our approach.

The whole point of the Education Act 1996 and the special educational needs framework is to ensure that children's needs are met. Clause 1 does not stand on its own. It works in conjunction with other provisions, both legal and monitoring. It is worth while reviewing the provisions of the Education Act 1996 that protect children with special educational needs. Section 7 requires parents to cause their children to receive full-time education that is suitable to any special educational needs that they may have. Section 9 ensures that pupils are educated in accordance with the wishes of their parents so far as that is compatible with the provision of efficient instruction and training. Section 14 requires local education authorities to ensure that sufficient schools are available for their area to secure special educational provision. I hope that that answers the hon. Gentleman's question.

Photo of John Hayes John Hayes Shadow Minister (Education) (Schools)

When I asked the Minister in a written parliamentary question in November how much time was spent training teachers in the skills required to teach children with special educational needs, she said that the information was not collected centrally. Although there is now a requirement for teachers to show that they have grasped the basics in that respect, I am not sure that there is consistent training or that those skills are being applied. The Minister must acknowledge, as I would acknowledge about the previous Government, that performance in this field is patchy.

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

I suspect that I went on to point out the significant improvements that have been made in teacher training in this field. As the hon. Gentleman has already accepted, changes have been made to qualified teacher status, and teachers must now show evidence of recognising special educational needs and understanding what is required to deal with them. That is subsequently followed up in their induction year.

We have worked with the National Association for Special Educational Needs to help provide resources to schools and teachers to back up the specialist standards that have been developed alongside the Teacher Training Agency. Significant resources are being provided through the standards fund. Indeed, more has been provided for the training of teachers and learning support assistants in the SEN standards fund this year than was provided in the entire SEN standards fund for 1996-97.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

If I may pick up the point that the Minister has just made in response to my hon. Friend's point about the training and competencies of teachers, we began work on the matter—I was anxious for us to do so—in the mid-1990s, and I am glad that it is coming to fruition. She rather skated over the duty in section 9 of the 1996 Act to educate children in accordance with their parents' wishes. She made an omission that, unless I have overlooked something, it is relevant to place on record. She referred to compatibility with the provision of efficient instruction and training, but she stopped at that point without adding the words, which are, I believe, still in the 1996 statute,

``and the avoidance of unreasonable public expenditure.''

I mention that not to correct the Minister but to draw attention to the underlying fear in the minds of many local education authorities and people who do not have a particular axe to grind that policies of what might be termed theological inclusion are likely to give rise to exactly those anxieties about huge expenditure for little benefit. She needs to respond to that in relation either to this matter or efficient education, which we shall discuss in a moment.

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

I assure the hon. Gentleman that I shall discuss resources in a moment.

I was rudely interrupted—

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

I was interrupted when pointing out to the hon. Member for Tewkesbury that section 14 of the 1996 Act gives him some reassurance about the need for local education authorities to secure special educational provision in the authority.

Photo of Laurence Robertson Laurence Robertson Conservative, Tewkesbury

May I ask an innocent question? How can the Minister ensure that the council will not close all special schools in its area? She has said several times that she does not have the power to prevent the closure of special schools. I dispute the contention that she has no hand in that unless she appoints an adjudicator. Will she explain how that will work in Gloucestershire, where the council seems determined to close such schools?

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

I was going to discuss that later. The local organisation of schools is an issue for local decision. Local reorganisation of schools will always happen. In my constituency, 10 schools are being closed as part of a reorganisation. I understand the pain that that causes, but I do not believe that our system is stuck in concrete and incapable of change.

I can tell the hon. Member for Tewkesbury that Gloucestershire has a responsibility continually to keep in mind its provision for children with special educational needs. It has chosen to review the provision, and I understand that the review will continue for some time as the authority carries out extensive consultation with local schools and parents. Any proposals will have to be put to the school organisation committee, on which there is a representative of a special school in Gloucestershire. I believe that that representative is a parent governor at the Alderman Knight school, about which the hon. Gentleman has been especially vocal. If the school organisation committee fails to come to a unanimous decision, the decision will go to an adjudicator.

The hon. Gentleman continues to suggest that Ministers have some influence over the independent adjudicator. I can only reiterate that that is not the case. As my hon. Friend the Member for Colne Valley said, local Members of Parliament must undertake their constituency responsibilities and make the arguments at a local level. [Interruption.] The hon. Gentleman says from a sedentary position that I did not answer his question. He said that I could influence the independent adjudicator, and I have made my position clear on that point.

Photo of Laurence Robertson Laurence Robertson Conservative, Tewkesbury 5:15 pm, 27th March 2001

The Minister gave a detailed explanation of how local decision-making works. However, I want to know how the Bill provides that there will be special schools in Gloucestershire?

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

The Bill neither provides that nor makes it less likely. The local education authority must ensure adequate provision for special educational needs in Gloucestershire by acting in line with the law.

Photo of Mr Nick St Aubyn Mr Nick St Aubyn Conservative, Guildford

The Minister mentioned safeguards elsewhere, but I hope that she will be more specific about those safeguards in respect of children's needs. This point ties in directly with my hon. Friend's point. If the legislation moves away from that focus on children's needs, he fears—and I share his fear—that the dynamic behind providing separate special schools will be undermined. That is why the matter is important.

I refer back to section 316 of the 1996 Act, which refers to the child

``receiving the special educational provision which his learning difficulty calls for''.

The lack of that one line is worrying, as it seems to mark a change in emphasis in the legislation.

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

I was in the process of outlining where the safeguards lie for the child's best interests when I was tempted down various different alleys by Opposition Members. Wanting to oblige them, I disappeared down those alleys, but I will now return to the safeguards that exist not only in the legislation but in other places.

Section 317 of the 1996 Act requires governors of all maintained schools to use their best endeavours to ensure that any pupil who has special educational needs receives the provision that his or her learning difficulty calls for. Section 324 provides for statements of special educational needs to be maintained and made by local education authorities. Schedule 27 ensures that the child's individual needs are taken into account in deciding whether to name a parent's choice of a maintained school in a statement.

Furthermore, the special educational needs code of practice and the statementing process ensure that children's needs are identified and that appropriate action is taken to enable them to achieve their potential. Statements specify the provision that should be made, and local education authorities are under a duty to arrange it.

On the point raised by my hon. Friend the Member for Bridgend (Mr. Griffiths) and the hon. Member for Oxford, West and Abingdon about the voice of the child, I can assure the Committee that we consider that very important. We have made it clear in the revised code of practice that we will expect local education authorities to take account of the ascertainable views and wishes of an individual child, not only in terms of assessment and provision—including the school or type of school—but in several ways throughout their education, from the early years.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

I am grateful to the Minister for giving way, though she has perhaps done so too promptly. Will she comment on a situation in which two natural parents, who may no longer be in a relationship, have differing views about the welfare of the child, so that the parental advice is split? I realise that such an issue would be sensitive, but we should have some steer as to what a tribunal or local education authority should do if such representations are made.

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

Clearly, that would be a difficult situation. I should have thought that the parent partnership services that are proposed later in the Bill would have an important role to play in such a situation by facilitating agreement between parents. The local education authority would have to consider the views of both parents.

Issues have been raised about a conflict between the wishes of the child and the role of parents. LEAs will take account of the views of a child, and the revised code of practice will make that need more explicit. We shall provide guidance to enable that. However, in the event of an impasse, parents' views will take precedence over the views of the child, for some of the reasons outlined by the hon. Member for Oxford, West and Abingdon. Parents have a legal duty to ensure that their child receives education, and they may express a preference for a maintained school.

Photo of John Hayes John Hayes Shadow Minister (Education) (Schools)

The Minister is being typically generous in giving way. I do not want to tempt her in the way that she was tempted earlier.

The Minister has, very honestly, made it clear that in the case of a parental dispute, the desires and wishes of both parents will be taken into account. If our amendment were accepted and the specific educational needs of the child were paramount, would that provide those who are taking the views into account with a touchstone for their final decision? I am referring to tribunals and, if the matter went further, to the courts. Would it not be helpful, for such deliberations, to include the amendment in the Bill?

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

I have pointed out that the best interests of a child are at the centre of the process in a range of ways. Our argument is not that the best interests of the child are not important, but that we believe that they are safeguarded in the range of ways that have been outlined.

We have agreed that Her Majesty's chief inspector of schools will monitor the new inclusion framework, which will help to prevent abuses and ensure that the needs of the child are safeguarded. Additionally, we will issue statutory guidance, about which we will consult widely, on the practical operation of the new framework. The guidance will set out clearly the safeguards that I have highlighted.

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend

My hon. Friend has mentioned the guidance, and she has stated that an amended version of the code of practice will be published at some time in the future. Will she be more specific about the timing? Although the Bill deals satisfactorily with the concerns that it addresses, the guidance and the code of practice will be vital to how it works?

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

I agree that both documents are important, as they will enable us to put flesh on the bones of what the legislation is intended to achieve.However, the guidance and the code of practice are influenced by the passage of the Bill. We have carried out consultation on the revised code of practice, and we propose to introduce it for approval by Parliament soon after the Bill receives Royal Assent. We have also begun to work on the inclusion guidance, and we are discussing its contents with organisations that are concerned about the matter.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I have listened carefully to the hon. Lady's detailed and thoughtful response. With regard to the code of practice, she mentioned that the views of the child would be sought, and I thought she was about to explain that point, when she was interrupted. I would be grateful if she would clarify that for the record, so that her reference cannot be considered merely as a token reference. What will be the status of the views of the child in the process?

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

I thought that I had made that clear. The revised code of practice is, of course, statutory, and the local education authority should emphasise the need to ascertain the wishes of the child, not only in the statementing process, but with reference to the range of provisions to which he or she might be subject. That is how to safeguard the best interests of the child.

We are concerned about new clause 1 because it seeks to reinstate, through the back door, provisions that are similar in their general effect to the first caveat of section 316 of the 1996 Act. Committee members are aware that the Government decided to drop the caveat because we believed that it had been abused. It has often been used to block inclusion, rather than to protect the needs of the child. That view is held by the people who responded to our consultation and by many of the lobby groups that have contacted us.

The hon. Member for Daventry referred to the example that I mentioned on Second Reading, and I shall now recount another. In this case, a child with Down's syndrome had been successfully placed in mainstream classes since reception. In year eight, the child's family relocated to a different area where the local education authority stated that a mainstream school could not cater for the child's needs, and a place was offered only after the parents had lodged an appeal. That was a grave misuse of the caveat, and the story further supports our argument that it has often been used against a child's interests.

The hon. Gentleman suggested that my previous example implied that the system was working well, because the tribunal had sorted out the problem: when the parents appealed, a mainstream place was offered. However, parents should not have to fight for their child's inclusion. It is not good enough merely to say that the tribunal will sort matters out. When parents have to fight for what they believe to be right for their children, it often results, at least, in prolonged worry for the entire family, and the child sometimes does not receive the education provision that he or she needs for a period.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment) 5:30 pm, 27th March 2001

I have been following the hon. Lady's arguments with interest and a degree of anticipation. Will she explain to the Committee why such difficulties, which must inhere in the local education authority, would be excised by removal of the caveat? What safeguards will there be for the individual child because of the removal of that caveat? Even if she waves her magic wand and asks for an inclusion policy, how will it emerge in practice? I am referring to the need for redress when LEAs are recalcitrant.

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

Clause 1 sends an important positive message about inclusion. The point about recalcitrant LEAs relates more to efficient education. Our proposals will mean that maintained schools and LEAs will have to justify why no reasonable steps could be taken to prevent a child's inclusion from being incompatible with the efficient education of other children. I hope that that is an adequate response to the concerns expressed by some hon. Members about whether LEAs would be able to use the caveat of efficient education to deprive children of a mainstream place when their parents want it.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

These are important issues and it is right to discuss them. Is the measure to which the Minister referred tied to the general duties of LEAs in relation to disability discrimination as laid out in this Bill, rather than to the SEN provisions? I am not clear as to how those two different aspects interact.

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

We will go on to consider the duties of LEAs and schools in relation to reasonable adjustments and the duty to plan when we discuss the second part of the Bill.

Concern has been expressed whether the efficient education caveat can be used to deprive a child of a mainstream place. Our argument is that the Bill ensures that LEAs will have to justify their inability to take reasonable steps if they use that caveat. The clause transforms section 316 into a positive force for inclusion.

Some Members have suggested that our plans are intended to save money and create inclusion on the cheap. Others have raised sensible concerns about whether resources are available to fulfil the aim of the legislation. We are clear that inclusion is not related to cutting costs; that is why we have already pledged and made available significant additional resources to facilitate the inclusion of children in mainstream schools in a meaningful way, delivering the high standards of educational achievement that we want for those children.

I repeat that £82 million is being made available through the standards fund for 2001-02 and £220 million is being made available over the next three years through the schools access initiative, in addition to increased overall funding for schools. It is worth pointing out that under this Government, real terms increases in overall funding per pupil have been more than £300 per pupil already and, by 2003-04, they will amount to nearly £750 per pupil, in comparison with 1997-98.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

We are fairly used to the rehearsal of figures by Ministers who are trying to show how generous they have been to education. May I bring the Minister back to the specific point about LEAs? Insofar as they have additional duties and obligations under the Bill, will she give an assurance that the revenue support grant will be adjusted to take into account additional current costs in discharging those duties?

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

I was pointing out that we have not only put in place specific support for some of the issues raised today but, through the significant extra funding that we have already made available and planned to put into schools, ensured that resources will be there to enable the sort of high-quality and inclusive education that we all want.

The hon. Gentleman might not enjoy hearing me rehearse the extra money that the Government have made available to schools, but it is important to emphasise that the increase in funding has not just been made through revenue funding. We must also consider capital spending over and above the schools access initiative, including public finance initiative credits. As I pointed out on Second Reading, the overall increase in capital spending has often improved special educational needs facilities in schools as well.

I do not completely agree with the hon. Gentleman's argument that capital funding always brings additions to revenue funding. In some cases, sensible capital funding may help to relieve pressures on revenue funding. Some £1.35 billion of additional provision has been included in the standard spending assessment for 2002-03, showing that the Government are serious about raising standards for all children, including those with special educational needs, regardless of whether they are in mainstream or special schools. As I also pointed out on Second Reading, funding per pupil in special schools has increased by 20 per cent. in real terms between 1997-98 and 2000-01.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

The Minister must accept that, however generous the Government have been, they have not provided an answer. Simply to state how much money they have given does not relieve concern about whether it will be enough. Had the sum been £181 million rather than £221 million, she would still have announced it, even though it was £40 million less. I am sure that the sum is generous in her terms, but she must be aware of concern that some estimates of the cost of the measures exceed the sum that she gave. It is the potential gap rather than sum that counts.

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

It is my job to understand such points. In any such situation, Opposition Members will raise the issue of resources. We live in a world in which local authorities and schools have had extra resources provided by the Government. They faced cuts under the previous Government, and under Conservative spending plans, face cuts again if the Conservatives ever get back into government. That is the reality that I seek to demonstrate.

Photo of Mr Nick St Aubyn Mr Nick St Aubyn Conservative, Guildford

The Minister must know that funding for education must keep pace with growth in the economy because, broadly speaking, teachers' salaries need to rise in line with inflation.

Photo of Mr Bill O'Brien Mr Bill O'Brien Labour, Normanton

Order. We are broadening the issue much too much by talking of teachers' salaries and revenue support grants. I have been tolerant, but I want the Minister to deal with the points raised in the amendment.

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

I shall come to the point raised by some hon. Members about the threat that the Bill might pose to special schools. It has been suggested that inclusion is an agenda to close many special schools. I am keen to put it on record, yet again, that that is not the case. Special schools have nothing to fear from the Bill. We seek to ensure excellence and choice for all.

I have visited several special schools, and have been impressed by what I have seen. Some of the heads and teachers whom I met told me that they did not feel threatened by the development of inclusion, and instead knew that they had a continuing vital role to play in an inclusive educational system. My hon. Friend the Member for High Peak (Mr. Levitt) has already pointed out how such schools can operate. Along, I am sure, with other hon. Members, I pass on my congratulations to the school that he mentioned, the name of which temporarily escapes me.

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

I thank my hon. Friend. That school is clearly doing exactly the sort of job in its links with mainstream schools that the Government consider important.

The hon. Member for Guildford (Mr. St. Aubyn) appeared to agree that the role that we envisage for special schools by developing such links is important. Does he recognise that special and mainstream schools are better able to work together because of the Government's investment through the standards fund? Last year, I was pleased to launch the CD-Rom ``Connecting Schools for Inclusion'', which not only expresses the wish for but provides the practical means by which schools can work together.

I have dealt with some of the concerns raised by the hon. Member for Tewkesbury, but I must reiterate that there will continue to be changes to local provision to reflect local circumstances; that has always been the case.

Photo of Mr Nick St Aubyn Mr Nick St Aubyn Conservative, Guildford

If the Minister is about to close her remarks, I hope that she will not do so without answering my questions about the cost of funding disputes under the system and how that will be affected by the Bill.

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

Unfortunately, I am not yet drawing my remarks to a close, much to the chagrin of the Government Whip, my hon. Friend the Member for Sheffield, Attercliffe (Mr. Betts). I shall make some progress.

The size of the special school sector dropped from 1.3 per cent. of all pupils in 1991 to 1.2 per cent. in 1995. It has remained constant during each of the past six years, catering for 1.2 per cent. of all children. We do not envisage that that will change dramatically. We have a buoyant, vibrant specialist school sector, which is what the Government want.

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

No, I will make some progress.

Amendment No. 1 provides that the educational needs of individual pupils—presumably children with special educational needs—are paramount. The hon. Member for Oxford, West and Abingdon pointed out some of the problems with that. Presumably, that would mean that their need would override any other considerations. Although it is important to meet the needs of children with special educational needs, it cannot be right that their needs should always override those of other children. I do not believe that that is what Conservative members of the Committee want, but it would be the effect of the amendment.

Ensuring that individual needs are paramount also presents a number of practical difficulties. What does the hon. Member for Daventry envisage would happen when the needs of two children conflicted? Whose needs would then be paramount? The individual needs of children must be balanced alongside the wider needs of different groups of children. That is the only way in which the interests of all children can be protected.

Photo of John Hayes John Hayes Shadow Minister (Education) (Schools)

I do not want to cause the Minister further difficulties, or even the Government Whip more chagrin, but the amendment states ``For each such child''. If she reads the amendment in relation to the Bill, she will see that there is no suggestion of a conflict such as she describes in respect of other children, because ``each such child''—we are talking about children with special educational needs—surely means that the paramount nature of the need will relate to that child's education, rather than to the broader matters that she is introducing.

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

It is far from clear that that is the case. In fact, we see clear difficulties such as those that I have outlined.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment) 5:45 pm, 27th March 2001

Is the Minister arguing that there is a tension surrounding the importance that should be attached to the interests of the individual child which is resolved by considering it alongside the provision of efficient education for other children? Is she arguing that if that caveat were not retained, it would be impossible to see where the boundary should be drawn and, to go back to my reference to section 9 of the Education Act 1996, to see where any unreasonable cost or other use of resources was involved? Is that her argument?

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

That suggestion is flawed in many ways. It raises the question of what happens if the needs of two separate children are paramount and whether the needs of an individual child should be paramount over the needs of other children. The amendment is deeply flawed. The hon. Gentleman has made it clear that the amendment refers to the Secretary of State, but how could any Secretary of State oversee each individual child's education to ensure that his or her needs were paramount? That is simply unworkable.

Several hon. Members have raised the issue of local authorities who, they believe, are not fulfilling their functions. The hon. Member for Guildford mentioned Ofsted reports of local education authorities. Of course, we are able to analyse the competence of LEAs in respect of special educational needs because this Government introduced Ofsted inspection of LEAs. That has enabled us to see the differences in provision. With 150 LEAs, variations in performance are inevitable. Local flexibility is important, but a greater consistency of approach is needed. Our regional partnerships will promote greater consistency, as will the proposed code of practice.

We also intend to strengthen the requirements on LEAs to make clear their strategies for special educational needs through changes to the SEN information regulations. That will require them to publish their SEN policies and detailed arrangements for what schools might provide from their budgets under school-based provision. We will also bring together and emphasise the strategic roles and responsibilities of LEAs and schools for special educational needs to aid better monitoring and accountability.

Before the hon. Member for Guildford jumps up, I will reply to his question about the amount spent on disputes. It would be difficult to define a dispute and to collect data on that, but I agree that appeals to the special educational needs tribunal can be costly and waste important educational time. That is why we are placing a duty on LEAs to set up informal arrangements to prevent and resolve the disputes that we will be discussing under clause 3, but I can give the hon. Gentleman some reassurance by saying that the special educational needs tribunal's annual report for 1999-2000 revealed that, after years of growth, the number of appeals now shows signs of stabilising. The tribunal's president was able to report that, for the first time, the number of appeals registered showed no material increase over the previous year.

Photo of Mr Nick St Aubyn Mr Nick St Aubyn Conservative, Guildford

The Minister's predecessor, now the Minister for School Standards, held out great promise in the first Session of this Parliament that the number and cost of appeals would go down, which would enable more money to be spent on provision for special educational needs. The Minister seems to be saying that the current system is finally bedding down, but she is now about to move the goalposts. Will that not create more grounds for disputes and appeals in future?

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

We are straying slightly into areas covered by later clauses, but the proposals that will become statutory under this legislation, which are already operating in many LEAs to resolve disputes, have led to the increase in appeals stabilising. I reassure hon. Members with concerns about local authorities that the Secretary of State already has powers under sections 496, 497 and 497A of the Education Act 1996 to intervene where LEAs or maintained schools are acting unreasonably or failing to fulfil a statutory duty, or in the case of LEAs failing to perform their functions to an adequate standard.

I must point out another problem with the amendment: it appears to seek to extend the powers of the Secretary of State to the non-maintained sector. That is the effect of its wording. Is that really what the Opposition are seeking? What additional practical and workable arrangements could be put in place that would not unduly limit local autonomy or undermine the special status that non-maintained and independent schools cherish?

One technical flaw of amendment No. 1, which makes it impossible to accept, is that it fails to take into account the fact that although the Secretary of State has overall responsibility for education in England, the National Assembly for Wales is now responsible for education in the Principality. Presumably, the amendment is intended to provide for the same duty in Wales as in England. However, with no mention being made of the National Assembly for Wales, the amendment is unacceptable. I hope that on that basis the hon. Member for Daventry feels able to withdraw it and that he will not press new clause 1.

Amendment No. 2 seeks to delete proposed new section 316(3)(b). That paragraph provides protection from the small minority of children whose inclusion would be incompatible with the efficient education of others. The amendment, as I think I pointed out in my intervention on the hon. Member for South Holland and The Deepings, somewhat contradicts the Opposition's arguments in support of amendment No. 1—that the needs of children must be safeguarded. The effect of the amendment would be to secure an absolute right to a mainstream place, fettered only by parental choice. That would mean that no consideration whatever could be given to the impact that a child's inclusion would have on the learning and safety of others. Is that really what the Opposition seek to achieve? We believe that the impact on others must be considered.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

The Minister is reading strenuously from a brief. She will recall that, at an early stage in the Committee's proceedings, I said that this was a probing amendment, designed to find out what the Government thought about the matter. She is telling us what the Government think, obliquely. However she need not hang such concerns round the neck of the Opposition.

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

It is my responsibility to point out the practical realities of accepting the amendment. What parents want is important, but the amendment would make parents the sole arbiters. Where parents want a mainstream place for their child, the education service should do everything possible to provide one. Equally, where parents want more specialist provision, their wishes should be considered.

However, the needs of individual children must be balanced with the need to safeguard the interests of all children. If we accepted the amendment, it could mean that if the parents of a child who had abused another child wanted a mainstream place for their child, it would have to be provided. If the parents of a child who had demonstrated severely challenging behaviour, and had regularly attacked teachers and children, wanted a mainstream place, it would have to be provided. I do not think that that would be in anyone's interests, least of all those of the child with special educational needs.

I have already dealt with whether the efficient education caveat could be used by local authorities indiscriminately to exclude children from a mainstream place. Local education authorities have a responsibility to show that they were unable to take any reasonable steps to overcome the incompatibility between a child with special needs and a mainstream place. Given the assurance that HMCI will monitor the effect of clause 1, I hope that the hon. Member for Daventry will withdraw the amendment.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

We have had a long and constructive debate. I spoke at length this morning, and my hon. Friends spoke at lesser length but with considerable passion. I assure the Committee that I am sensitive to the need to make progress.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I do not want to impede the hon. Gentleman's wish to make progress, but the Minister caught me by surprise with that quick end to her speech. I thought that she might have dealt with what I said about amendment No. 2, and wonder whether the hon. Gentleman might invite her to say why subsection (3)(b), which amendment No. 2 seeks to remove, uses the word ``efficient'', not ``effective''?

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

The hon. Gentleman is helpful. The Minister may like to respond, but if she does not feel happy about doing so tonight, she may wish to do so in correspondence. Given the exigencies of time, she will have to be quick about it, but we would be happy either way.

The hon. Gentleman's intervention leads me to respond to his gentle chiding of me some hours ago. He pointed out a degree of waver in the various terms that I had used. I realise that the needs of the child, the wishes of the child and the wishes of the parents as proxy for the child are slippery concepts. Important distinctions must be made, and I acknowledge that in the hands of lawyers, they are often crucial.

I shall pick out specific comments made in the debate. I enjoyed the contribution of the hon. Member for High Peak, and was pleased to hear a voice from the Government Benches speaking up for special education when it was appropriate. He said that some excellent special schools are keyed into the overall system, which was worth saying. He spoke about our attitude to local education authorities. We have consistently made it clear in our proposals on free schools that local authorities would have a continuing role in order to secure provision, but not necessarily to provide it. However, we are well aware of the importance of statementing and other provisions in that extremely sensitive area.

It would be fair to say that the Minister made a good fist of responding to some of the complex and serious issues that were raised, about which we feel strongly. She was good, but not quite good enough to tempt me to withdraw the amendment.

I shall mention the positive aspects of the debate. We welcome the emphasis on partnership and dispute resolution, which we shall discuss under later clauses, albeit not at such length. We also welcome Ofsted's involvement as referee. The Minister said that we do not yet have the final SEN code and guidance, but we understand that further substantial documents, which we have seen in draft, will form part of the custom and practice of the tribunal. We also understand—I shall return to this point—that clause 1, and any amendment thereto, does not stand on its own; it is part of the provision's general context.

We can give the Minister a reasonably good report. She indulged in a little electioneering, but it was nothing out of the way. It is not for me to speculate whether it was appropriate. She showed a slight touch of what I might call the schoolmarm on amendment No. 2 in wondering whether we were seeking to subvert the cause of efficient education—or, as the hon. Member for Oxford, West and Abingdon would have it, effective education. I did that to provoke the hon. Lady, and she then gave us her understanding of what was involved. I am sensitive to those issues; they are keyed in on provisions about unreasonable expense. Authorities do the best that they can, some more effectively than others.

We are still concerned about a number of points. My hon. Friend the Member for Guildford and others mentioned resources. This will not be a cheap enterprise. We know something about the likely additional capital spend on the schools access initiative, which we welcome. Although the Minister is right to say that there will be a revenue saving in certain cases, it is likely that there will be a substantial current increase across the piece. We have had no estimate from Government as to the overall effect. We have heard some talk about the standards fund—remember that anything that goes down that route is denied to local education authorities as part of their spending under the revenue support grant and their overall education budgets. That does not look good, even on the electioneering side, when we consider total spend per pupil, but I do not want to go on about that.

Photo of John Hayes John Hayes Shadow Minister (Education) (Schools) 6:00 pm, 27th March 2001

I hope that my hon. Friend will flesh out questions of revenue spending in respect of the acquisition of equipment. Much has, rightly, been made of the valuable role that can be played by communications equipment and information technology as a bridge to learning for people with special educational needs. However, that has a significant impact on on-going expenditure--it should be seen as a long-term investment. Write-off, replacement and upgrades are critical, as is the whole business of on-going revenue expenditure. There must be a notional view in Government about what that expenditure will be nationally.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

I hope that the Minister will respond to my hon. Friend's point tonight or, perhaps, in another context. We flagged it up a long time ago by saying that there are always revenue consequences of capital spend, and that even the best and most modern technology needs to be upgraded and altered from time to time.

We do not make those points to cavil at the wish to improve provision for special education; nor would local authorities or the Local Government Association. However, we should be aware that the exercise is not cost-free and cannot be easily swept away alongside other pressing priorities. The Government need to reflect responsibly on that. My second point is on the provision of special schools. In a sense the Minister is right. Nothing in the Bill threatens them, and there is no provision to close them—

Photo of Mr Bill O'Brien Mr Bill O'Brien Labour, Normanton

Order. I draw the hon. Gentleman's attention to the clause. We are considering mainstream education. I have allowed a wide range of discussion so that the Bill may be put in proper perspective, but I must ask the hon. Gentleman to comment on mainstream education.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

And rightly so, Mr. O'Brien. I was merely trying to summarise the debate that you have allowed, particularly as regards the concern of my hon. Friend the Member for Tewkesbury that special schools might be taken away. We shall have occasion to return to this, but perhaps I can reiterate a point that was made on Second Reading. Our concern is not that the provisions remove special schools, but that if local authorities are minded to remove special schools from their portfolio, there is nothing to prevent them from doing so. Our amendment about the paramountcy of the child aims to safeguard that provision. What concerns us is not that it is done through the front door, but that it might be done through the back door.

My third point relates to the caveat. I understand and respect the views of the Special Educational Consortium and of individual organisations that have lobbied us and made representations. There is a wish not to subvert inclusion, where it is properly done, and not to have caveats that create a problem by providing something that, however unexceptionable it is in principle, might have a perverse effect. With the greatest respect to the Minister, although she mentioned some of the cases of dysfunction that might arise in local authority practice, which are now remediated only by the tribunal, she did not explain how that dysfunction will be removed under the new arrangements. That problem does not arise from the caveat. Frankly, the Bill will work with good will and with competent players. It will not work as well if the players are not competent or, in certain cases, if they are not well disposed towards the interests of the individual child or collectively to children with special educational needs.

We are trying to put children first. I know that the Government subscribe to the same principle, whether through the proxy of the parents on behalf of the children or through the expressed wishes of the child. We want that. More than anything else, we want an audit trail. Let us suppose that a local authority has an agenda that is not about putting children first, but is driven by bean counting, as I described it, or accountancy, as my hon. Friend the Member for South Holland and The Deepings more politely put it. An authority may subscribe to an ideology that is concerned not with whether it helps children, but about whether they are put into mainstream education, even if that is not the best way in which to deal with them. It may have another agenda, such as taking money from education and putting it into another area. All such examples fail the needs of sensitive children.

We all agree that we want children to come first. I mean no disrespect to the Minister, but we do not consider that that point has been reached. We are not anxious to subvert or scupper the Bill with which we fundamentally agree, but we consider that one area is not absolutely right. Although we have approached the matter in several ways both here and in another place, we may not, on reflection, have put it into the right context.

I advise my hon. Friends to join me in voting for the amendment to register our continuing concern, but I can discern the germ of a possible solution, which the Minister may like to think about. Whether or not she wants to share her thoughts is up to her. She referred to sections 495 to 497 of the Education Act 1996, which cover the ancillary functions of the Secretary of State. Those provisions may also apply to the National Assembly for Wales, since it is the executive body for Wales, and they concern the ability of the Secretary of State to intervene if something is going wrong, which is along the lines of our amendment.

Section 496 refers to bodies that have acted or propose to act unreasonably with respect to the exercise of any power under the Act. In a sense, that is reflected in our amendment. We do not want a local education authority to act unreasonably in relation to children with special educational needs. The right action is to put the children first. We have no argument with that. We are concerned not with inclusion or exclusion, but with what is best for the children. That may be more difficult to secure in the non-maintained sector but, for whatever reason, a local authority, an organisation or an individual education provider in the maintained sector may act badly and not put forward the interests of the children.

I am not a lawyer, so I must not lecture the Minister on law, but I take an interest in such matters, and I understand that there is a general presumption that an LEA will behave properly. There is also a general presumption in relation to a maintained school. When the hon. Lady has recovered from the shock of, perhaps, resisting our amendment, she might reflect on whether there is a germ of her being able to say that it would be an unreasonable action to deny a special educational needs child his rights. There might be a way of producing a general declaration that is disjoined from the argument about mainstream and non-mainstream or maintained and non-maintained.

That might act as a litmus test, which the tribunal, and, subsequently, if necessary, the Secretary of State, could consider. The tribunal would say, basically, ``Did you do your job? Did you put children first?'' Such a test might allow us to take a trick—based on the consensus that already exists in the Committee—so that special educational needs would be supported and provision improved through the Bill. We might end up not with a disagreement superimposed on agreement but a final agreement, with which we could dispatch the Bill. Otherwise, on this important matter, we have a measure of disagreement, which we shall be anxious to register in a moment.

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

Would the hon. Gentleman be reassured, given the direction of his remarks, if he knew that the Secretary of State has used the powers under discussion to direct local education authorities in respect of provision for individual children. He has also done so in respect of a local education authority carrying out the wider function of providing enough school places. I certainly regard that as an appropriate use for those sections.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

I am grateful to the Minister. I think that we are feeling our way towards our destination, although I am not sure whether we have reached it yet. I am sure that she and her officials will provide the citation later, but I will need to reflect on what she has said. Given that the Committee agrees on so much, I cannot help feeling that we might be able to take the final step and achieve a system that stipulates, whether with reference to other legislation—which I always hate, because it is difficult—or in the Bill, that LEAs and schools must do right by special educational needs children. It must say to them, ``The Secretary of State, the nation and the tribunal are watching you. If you are not doing right, you are for it!'' That is our concern. We do not want to remove the importance of consensus or partnership but to say that a sanction exists that will enforce the process as if it were—to use a phrase that I used in my introductory remarks—a paramount court of appeal or final point of reference on whether a thing was done properly.

We must reflect on those matters. The hon. Lady may be able to help us at a later stage, if briefly, and we may make progress. The debate has been valuable in flagging up remaining concerns, moving some way towards reaching agreement on them and exploring possible remedies in order to reach complete agreement. I am minded to persist with the amendment, but perhaps we should learn the lessons of the debate and consider how to take the matter further.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon 6:15 pm, 27th March 2001

I had not intended to speak again, but I mentioned in an intervention that I wanted some clarification. The Minister's reply, for which we are genuinely grateful, left unanswered significant questions about resources. That is linked to the use of the phrase ``efficient education'', which has resource implications. Earlier, I asked the Minister to explain why ``effective'' was not used. It is a more accurate way of describing provision of education to other children, and providing it safely. Safety is an issue in relation to children who have an educational or behavioural disturbance, whom it might not be possible to maintain in a mainstream school if their behaviour put the safety of other children at risk. Now is the time to seek that explanation, because I fear that little time will be allowed for the clause stand part debate.

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

The term ``efficient education'' is used throughout the Education Act, in, for example, schedule 27 and section 7. It is appropriate to use it here to ensure consistency. There is, of course, a distinction between ``efficient'' and ``effective''. I have reassured the Committee on the extent to which we are putting extra resources into achieving inclusion and into the education system as a whole. Nevertheless, it is not unreasonable to expect LEAs to have regard for the efficient education of children, regardless of the fact that significant extra resources are being provided.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I had anticipated that the Minister might say that ``efficient'' appears in the existing Act. Nevertheless, it is still possible to amend all the words. I remain worried, even if I accept her point about ``efficient''. We are merely fortunate that the matter has not arisen before. Perfectly efficient education of other children is possible even when they are put at risk by the inclusion, behaviour and actions of another child.

I shall not press the matter, but I ask the Minister to consider whether a case might be made—this is the point of scrutiny—for including the words ``efficient and effective'' or ``efficient and safe'' to make it clear to authorities and schools exactly what is meant. Her comments would be useful. Scope exists for pursuing the matter further, though perhaps not now. There may be no clause stand part debate, but we may pursue the point at a later stage.

Photo of John Hayes John Hayes Shadow Minister (Education) (Schools)

I do not want to be seen to defend the Minister, but I want to test the hon. Gentleman's proposition. He said that a child could be educated efficiently while putting at risk other children in a class or school. I find it hard to believe that anyone would define such an education as efficient. It might be cost effective and efficient in purely financial terms, but not in broader terms.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

That is my point. I shall not pursue the matter, because I do not believe that that would be appropriate. This mini-debate may, at your discretion, Mr. O'Brien, become a clause stand part debate. I rest my case where I left it. An issue remains to be explored, but we shall oppose amendment No. 1 if it is pursued.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 11.

Division number 1 Adults Abused in Childhood — Clause 1 - Education in mainstream schools of children with special educational needs

Aye: 5 MPs

No: 11 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Mr Nick St Aubyn Mr Nick St Aubyn Conservative, Guildford

I beg to move amendment No. 12, in page 1, line 9, at end insert—

`(1B)For each such child which is in care, the duty of the Secretary of State shall extend to securing that the welfare needs of that child are properly considered in determining the educational provision for that child.'.

The amendment is designed to focus the Committee's mind on the issue of children in care. The preceding debate included a great deal of discussion on the role of parents. This amendment relates to children who have no parents or only foster parents. It should be regarded as a probing amendment, as I do not imagine the Secretary of State being personally involved in each instance.

I am grateful to Ofsted for its information on children in care. In response to the Minister's earlier spate of self-congratulation on having introduced a section on the report on LEAs, I was waiting for her to congratulate the Conservative party on having introduced Ofsted. She and her party were hotly hostile to our doing that, whereas we welcomed the extension of the building block of higher standards to include invigilating the work of LEAs.

In the past financial year, to which the report relates, Her Majesty's inspectorate inspected provision for young people in public care in 26 local authority areas. The inspection shows that the level of attainment by children in care is far lower than that among those who have the benefit of a family home. Ofsted praises the fact that in some LEAS, 70 per cent. of pupils achieved one GCSE, but that level of attainment is far lower than that among other 15 and 16-year-olds. It is well known that our all-party Select Committee examined the issue of teenagers who are dropping out of the system, and the number of exclusions relating to children in care is proportionally much higher than for other children. Clearly, there is real difficulty.

We should all welcome the idea that children in care should have a named teacher in the school to look after their interests. Ofsted tells us that, at any one time, there might be three children in care in a typical primary school, or eight children in care in a secondary school. In another report, the Select Committee recommended that highly able children should have a named teacher in the school to look after their interests. That is a useful concept. The provisions envisaged in the clause might be achieved in practice by having a named teacher fulfilling the role of looking after the child's interests.

I will not speak much longer, but have a question for the Minister about the proposed new section 316(3). It states:

``If a statement is maintained under section 324 for the child, he must be educated in a mainstream school unless that is incompatible with—

(a) the wishes of his parent''.

How will the wishes of a parent be translated into a proper assessment of the interests of a child who is in care, when the concept that the educational needs of the child should be paramount has been excluded from the Bill as a result of our Division?

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

I am pleased that my hon. Friend tabled his amendment, which raises a serious and important matter. While the issue of children in care may be perceived as unglamorous and does not hit the headlines as often as it should, it is a very real worry to many of us, as my hon. Friend, who is a distinguished member of the Select Committee, has said to that Committee and in its report.

We all know how difficult it is when we are in Committee to keep up with the traffic of other matters. For example, today I have had thumped on to my desk two reports from the social exclusion unit. Those reports re-examined the problems of teenagers, including runaways, and I have not yet studied them. There is a worryingly high correlation between being in care and subsequent offending or getting into trouble.

I wish to make two further points. First, from my constituency experience, I am aware of the importance of parents acting as advocates for an individual child. In the absence of parents, somebody, such as a named teacher, must act—to use an old phrase—in loco parentis. There must be a person who sticks up for the rights and interests of the child and who, as part of the process of determining the child's provision, can offer advocacy on his or her behalf.

The second point that I throw in relates to secure training centres. Initially, such centres did not receive a terribly good press from the then Labour Opposition, although I think that they have since found that the centres have strong benefits. I mention that because the second such centre, at Rainsbrook, is on the edge of my constituency. It has just received a rave review from the social services inspectorate, and I have been to see it on the back of that.

Of course, not all children who have been in care are automatically offenders—or certainly not seriously enough to justify their being in a STC. Nevertheless, the regime of welfare, pastoral support and intensive educational provision of about 25 hours a week of full-time education that such centres impose, is important for the rehabilitation of a young person and, dare I say it, for adult prisoners in other institutions. I have been immensely impressed by the way in which people who had become educationally dysfunctional have been able to move, in a short time, to being capable of work of GCSE standard.

My hon. Friend the Member for South Holland and the Deepings performed a service to the Committee by flagging up our concerns about failures in the educational system for children in care and the needs to support such children holistically, in terms of welfare and education, and to advocate their cause when others may not find it easy or fashionable to do so. We would all welcome further contributions to the debate and the Minister's reply.

Photo of John Hayes John Hayes Shadow Minister (Education) (Schools)

I want to draw out two brief points. I know, from his analysis of my earlier contribution, that the hon. Member for High Peak has his stopwatch running.

There is a correlation between children and young people who are in care and the potential for offending, which was mentioned by my hon. Friends the Members for Guildford and for Daventry. There is a further correlation between young people in care and the likelihood of being statemented. It is not merely a question of emotional and behavioural difficulties—there is a range of other problems—but there is a greater likelihood that children in care will be statemented. That is why my hon. Friend the Member for Guildford performed a service to the Committee by raising that matter.

My second point refers to an important amplification. Given the rejection of our appropriate and desirable wish to include a measure relating to the educational needs of a child in the Bill, where should we look for guidance about provision in situations in which parents are absent? That is fundamentally important. Grandparents or other relatives may be involved with a child, or the child may have no relatives at all. A conflict of views may arise from a complex family situation. The fact that the provisions in the Bill are all that we currently have sends shivers down my spine, and I hope that the Minister's response may provide the warmth to stop those shivers as soon as possible.

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

The amendment would create an additional duty for the Secretary of State to ensure that the welfare needs of children in care were met. I do not underestimate the importance of the points made by Opposition Members about the needs of children in care, but the amendment is unnecessary because children's welfare is safeguarded by legislation and, perhaps more importantly, by action that we are taking through the Quality Protects programme, which ensures that local authorities take seriously their responsibilities as corporate parents. Under legislation, once a child is in care, it is the local authority's duty to safeguard and promote his welfare. That is laid out in the Children Act 1989, which emphasises the importance of assessment, planning and reviews for children and young people who are looked after by local authorities. It is a statutory requirement that a care plan for each child is drawn up by social services.

However, the Government are not complacent about promoting the welfare of children in care. We introduced Quality Protects in September 1998, which is a major programme to overhaul children's services. It sets out key national objectives for improving children's services, including an objective to ensure that children who are looked after should gain maximum life-chance benefits from educational opportunities, health care and social care.

Photo of Mr Nick St Aubyn Mr Nick St Aubyn Conservative, Guildford 6:30 pm, 27th March 2001

The Minister will forgive me if she is about to come to this point, but under the clause, parents are envisaged as the advocates for their child. Who will act as advocate for the child in care?

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

I will forgive the hon. Gentleman, because I intend to refer to that question.

Under the Quality Protects programme, my Department and the Department of Health have worked closely together to improve the education of children and young people in public care. The hon. Gentleman mentioned one of the features of our joint guidance on the education of children and young people in public care, published in May 2000. That guidance is supported by statutory guidance in the Department of Health circular LAC (2000) 13. As part of a national policy, the guidance is aimed at ensuring that the educational needs of children and young people in public care will be upheld by vigorous corporate parents applying principles of good parenting.

Photo of Tom Levitt Tom Levitt Labour, High Peak

Browsing in the Vote Office earlier today, I came across ``Valuing People: a new strategy for learning disability for the 21st century'', which was published this month by the Department of Health. References to the Carers and Disabled Children Act 2000 and references in the Bill to carers and links with education surely answer all the Opposition's questions about the clause and render the amendment unnecessary. I congratulate my hon. Friend the Minister and her colleagues on an excellent act of joined-up government, which, in combination with the Bill, that reflects.

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

I thank my hon. Friend for his comments, although we have done even more than that. In addition to the designated teachers in schools highlighted by the hon. Member for Guildford, the guidance stipulates that children need personal education plans, that there should be time limits within which to secure educational placements, that local authorities must place a child within 20 days and that there should be reliable data. The hon. Gentleman rightly points out that Ofsted highlighted the poorer levels of attainment among children in care—that is why the Government have taken the action that I have described.

Like their peers, young people in care may at some time in their education have special educational needs. It is estimated that young people in care are six to eight times as likely to have a statement of special educational needs than pupils in the general school population. The guidance makes it clear that such pupils need the support and advocacy of a vigorous parent, as the hon. Member for Guildford said. In their case, the vigorous parent would be the corporate parent—that is, the local authority. The code of practice on the identification and assessment of special educational needs applies equally to children in care as to those not in care. Special educational provision should be made for children in care in line with legislation and the code of practice within the time scales prescribed.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

The Minister may either have covered my question or be about to do so. Will she confirm that, if a local authority is responsible for both advocating the interests of the child as parent in loco parentis and securing provision against a budget, for example, there will be some kind of Chinese wall ensuring that the person acting as the parent makes the case as the parent and that the local authority as the provider and budget holder is separate from that consideration? Natural justice requires that those two functions are seen as separate.

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

I reassure the hon. Gentleman that the guidance specifically states that, where a parental advocate is needed to access any service or support, the local authority, as corporate parent, must ensure that all children in its care have an effective champion. The hon. Gentleman suggests that the local authority has two hats—two separate duties, probably pursued by two separate departments—but I recognise his point and that made by the hon. Member for Guildford that children in care who have special educational needs must have strong advocates.

I reassure the Committee that guidance on the education of young people in care makes it clear that, in their policies on the education of children and young people in care, local authorities must set out clear lines of responsibility relating to the assessment of special needs, and state, for example, who will support residential and foster carers during the assessment process and who, if necessary, will appeal to the special educational needs tribunal. I hope that I have reassured the hon. Member for Guildford and that he will feel able to withdraw the amendment.

Photo of Mr Nick St Aubyn Mr Nick St Aubyn Conservative, Guildford

I am somewhat reassured by the Minister's comments, but according to Ofsted, the idea of a named teacher has been developed successfully only in some authorities. The practice is not yet universal and, until it is, that excellent idea will not be relevant to all cases. If, when the child's statement is being reviewed, the named teacher is the person who should say whether the child should not remain in maintained education and should go to a special school, will that opinion have the same authority in the deliberations of the experts as it would have if it had been expressed by the child's parents? Will the Minister answer that one point? It appears that the Minister is unable to answer that point, unless she is about to have some inspiration on the matter, in which case I will be happy to give way.

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

I think that I made it clear that two separate departments might deal with a child with special educational needs who is also in care. The named teacher does not have the role of corporate parent. In its responsibilities for children in public care, the local authority has the role of corporate parent. However, to reassure the hon. Gentleman on a point that he raised earlier, we intend to ensure—we are currently carrying out an implementation strategy—that the guidance that we have issued, which, among other provisions that I outlined, sets out the concept of the named teacher, is spread throughout all LEAs.

Photo of Mr Nick St Aubyn Mr Nick St Aubyn Conservative, Guildford

I have got as many pounds of flesh as I am likely to get this evening. With that reassurance from the Minister and given that we will continue to monitor the situation, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

I beg to move amendment No. 3, in page 1, line 14, leave out from `parent' to end of line 15.

It is getting fairly late, although we could go on for a long time, but I must confess to the Committee, in the full hearing of both Whips, that I have two weaknesses. I will share them with the Committee because they are both germane to the amendment. The first is that I enjoy the process of considering legislation in Standing Committee. I hope that, even after my long foray this morning, colleagues may share that passion with me. It seems incredibly important that we should examine legislation and get it right. If we do not, those in the real world who have to discharge the legislation and meet the needs of special education for children may not be as well served as they should be. Like the man in the Bateman cartoon, I enjoy Standing Committees, as I am afraid that the Whips are probably wise to that already. I am delighted to say that my hon. Friend the Member for Uxbridge (Mr. Randall), the Opposition Whip, enjoys them too, as do, I hope, the Government Whip and the Minister.

The amendment may have caused some puzzlement in the Government, but it is primarily about trying to improve the Bill and make life a little more comfortable for them. I shall indulge briefly in a minor twitting of the Government. I remember the activities of education Ministers, other than the present ones, in relation to city academies during consideration of the Learning and Skills Bill. I shall not stray out of order by talking about the academies at length, although they are mentioned in the clause. We had to legislate very much on the hoof and at the last moment, to some embarrassment of Ministers. The Government suffer from a certain readiness to introduce new initiatives and to re-brand schools in the maintained sector.

With those considerations in mind, the amendment's purpose was to provide a degree of flexibility. I am not unaware that my hon. Friends and I have introduced proposals for free schools, which I am sure we shall shortly be putting into legislation. Entirely neutrally on the subject of the election, I say that this or a subsequent Government might want to slot another sort of state-maintained school into the categories. The clause is like the law of the Medes and the Persians when it specifies

``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''.

Under that wording, there are grey areas between what is or is not a state school or a maintained school.

We sometimes find problems with the statistics, as schools move from one category to the other. Rather than having to legislate to include new categories that have not been thought of before, the amendment would enable us to agree that the Secretary of State could make an order to specify a new category. If the House thought that reasonable, he would not have to do more. Above all—I am sure that the Minister and her officials appreciate this—he would not have to have recourse to messy primary legislation because something had been left out.

I have been impressed by the fact that the drafting of the Bill seems rather better than such drafting sometimes is. I do not think that that is entirely due to the influence of another place. I shall give an example that would interest the hon. Member for St. Ives (Mr. George), were he here, which is the specific reference to the Isles of Scilly. They are in an anomalous position and are treated as an LEA, so we have to legislate for them specially. I shudder to think what would have happened in practice if the draftsperson or we had overlooked that. Sometimes, Governments are grateful for an element of flexibility.

I give, as it were, a trailer for the fact that I want to raise in discussion of the interpretation clause a related point about what is and is not a maintained school—if it meets your approval for debate, Mr. O'Brien. We need not go on about that at length, but Ministers of different political colours at different times have ideas for schools that are branded in different ways.

The interesting emphasis on selection and what it might do has distressed at least one member of the Committee who is not on the Government or Conservative Benches: the hon. Member for Oxford, West and Abingdon. The Government have an interesting philosophy that special schools should not select. I do not think that we should debate that tonight, and I am sure that you would not want us to, Mr. O'Brien. What is or is not in the maintained sector, or is or is not attached to it for the purposes of special education, is a rather protean concept, changing over time.

I tabled the amendment to be helpful. We do not want someone to be left out because the draftsperson forgot to include them, and we want Ministers to have a certain flexibility—a dangerous concept, but on this occasion we are attempting to be helpful.

Photo of Mr Nick St Aubyn Mr Nick St Aubyn Conservative, Guildford 6:45 pm, 27th March 2001

In supporting my hon. Friend, I should point out that at page 49, the Green Paper, ``Schools: building on success'' states:

``we intend to develop a new model which would enable an external private or voluntary sector sponsor to take responsibility for a weak or failing school . . . This will further develop the model used at King's Manor, Guildford'', to which I referred earlier. I am grateful to the Prime Minister at least for endorsing that outstandingly successful Conservative policy. As I said in the House the other day, what a pity it is that the local Labour party and the Secretary of State opposed us at every step of the way.

However, if we take the Green Paper and the Prime Minister's endorsement of our policy at their words, the paragraph to be inserted by the amendment is clearly essential. Paragraph 4.23 of the Green Paper tells us that the Government intend, if they should have the opportunity in the time left to them in their last year in power—or their last weeks, if they want to curtail that period—to introduce a new form of school similar to but different from colleges, academies and technology colleges.

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

The amendment is intended to ensure that the clause covers any new type of maintained school designated by the Secretary of State. The hon. Member for Guildford suggests that it is at least partially inspired by our recent schools Green Paper, which seeks to build on the reforms that transformed primary education, to secure a step change in secondary education and, in particular, contains our plans for diversity and autonomy in the secondary school system. I must say, however, that rather than crowing about it, the hon. Gentleman should be ashamed of the fact that we had to respond to the failure of Conservative-controlled Surrey county council to facilitate improvement in the school to which he referred.

Photo of Mr Nick St Aubyn Mr Nick St Aubyn Conservative, Guildford

As I explained, there are many children with special educational needs and disabilities at that school. When we took over the running of the authority in 1997, we found that the problems that we inherited were due to the actions and failures of the previous LEA run by the Labour and Liberal Democrat coalition.

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

There is evidence that although many children with special educational needs and particular difficulties may be a challenge for a school, that does not necessarily imply that that school will fail. What may prevent the school from improving is not receiving the necessary support from the local education authority.

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment

No, I will not.

To return to the amendment, I am afraid that however worthy, it is unnecessary. It is not appropriate to write into the Bill definitions of schools that may come into being. The correct place to define such schools would be the legislation that accompanied their creation. I should remind the Committee that existing specialist schools and the new city academies are covered by the definition of a mainstream school for the purposes of clause 1. I assure the hon. Member for Daventry that if and when new types of mainstream schools are created we will be able to extend the definition of a mainstream school in proposed new section 316(4).

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

I am sure that the Minister and the hon. Member for Oxford, West and Abingdon will remember the famous story—now long-bound in antiquity—of the Liberal Prime Minister who, on forming his Cabinet, said, ``Good Lord, I forgot Goschen.'' It is open to Ministers and draftspersons to overlook the matter, but the Minister has given us a challenge: she will not do any such thing. She may well shortly not be in a position to do any such thing, and if she will not help me, we shall have to ensure when we come into power that we get it absolutely right.

Photo of Mr Nick St Aubyn Mr Nick St Aubyn Conservative, Guildford

Does my hon. Friend agree that the Minister' s recalcitrance on this point casts doubt on whether the Labour party really would, given the opportunity, enact the proposed new model, and that those who want it to succeed will have to look to the Conservative party to pursue the policy successfully?

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

I have a feeling that you would not wish me to go too far with the point, Mr. O'Brien. I must say that the Minister's speech did not really represent a new model; I am not even sure whether it was the third way.

We should draw consideration of these matters to a close before we impart an improper element of levity, let alone electioneering, into the proceedings. It is important for the Minister to bear such points in mind. It is important that draftspersons should get it right. The Minister has given some assurances about the extent of the existing provisions, and I must accept them. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Further consideration adjourned.—[Mr. Betts.]

Adjourned accordingly at ten minutes to Seven o'clock till Thursday 29 March at Nine o'clock.