Clause 4 - Compliance with Orders

Special Educational Needs and Disability Bill [Lords] – in a Public Bill Committee at 1:30 pm on 29th March 2001.

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Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment) 1:30 pm, 29th March 2001

I beg to move amendment No. 15, in page 5, line 6, after `order', insert

`as promptly as practicable, and in all cases'.

This is unlikely to be a long or especially contentious debate. It is consistent with our recent debates on amendments that relate to what might be called the good faith of local authorities. The purpose of the amendment is to secure not simply literal-minded compliance by a local authority with the terms of the tribunal hearing but what might loosely be termed a proactive and positive response.

As an analogy—and a confession—I am sure that we are all familiar, perhaps as a result of writing articles for the local press or working for colleagues in the House, with being up against deadlines. Most of us find them helpful, as about two hours before D-day or H-hour we suddenly realise that we had better do something about that article that we have known about for the past six months, and we do it. They are a good catalyst for action.

In saying that, I do not suggest that it is acceptable for people to go beyond the requirements of the tribunal order. However, if a local authority, whether through ineptitude or because it is resisting or has not accepted the tribunal's decision, runs right up to the wire and does nothing about an order until the last possible moment, that is unacceptable.

It is to be hoped that the tribunal's order has been realistic, and realistically the matter may not be concluded until the last possible moment. However, the amendment relates to circumstances in which the matter could have been sorted out earlier and in which the authority could quickly take action. It is designed to avoid creating a perverse situation whereby the authority has a disincentive to act until the last possible moment, rather as I jocularly described in relation to our writing articles to deadlines.

If the action required is the right action to take and the authority could take that action promptly, the authority should not wait until the deadline but make a fist of starting. The amendment involves a reasonable test of the reasonability of an authority's actions in relation to special educational needs and whether it should start the process as soon as possible rather than waiting for the last possible moment. It was tabled with that consideration in mind.

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment 1:45 pm, 29th March 2001

As the hon. Gentleman points out, the clause is designed to reinforce and strengthen parental rights in relation to appeals directed to the tribunal. It will require LEAs to comply with SEN tribunal orders within a prescribed timetable, and failure to do so will leave an LEA open to direction by the Secretary of State or the National Assembly for Wales, as appropriate.

The amendment is unnecessary and potentially confusing. The regulations to be made under the clause are informed by detailed consultation with a wide range of interested parties—including parental and voluntary groups and LEAs—that was undertaken in late 1999. The correspondents all supported the introduction of specific time scales for the different types of orders, and were convinced that there was a need for them. The hon. Gentleman's amendment may stem from concern about those time scales. I assure him that they will be demanding and will ensure that LEAs carry out their duties without unnecessary delay. The time scales will not facilitate the idea that LEAs could, even if it was thought appropriate, put off action until later, which was one of the hon. Gentleman's concerns.

We are still considering the responses, but it might help if I set out our provisional plans. We envisage that the likely time scales for orders such as making or amending a statement, which is the most time-consuming, will not exceed five weeks. In some cases, orders must be carried out to a shorter timetable. For example, when starting the assessment or re-assessment process, we envisage a time scale of no more than a month. We intend to require that reinstatement of a statement takes place within a week, while ceasing to maintain a statement is carried out immediately or on the LEA's proposed date.

As I suggested earlier, those timetables are demanding. We have sought to strike a balance between the understandable wishes of parents for speedy compliance with tribunal orders, and the practicalities for LEAs of complying with those orders. The time scales were also informed by the views of the SEN tribunal about how long LEAs would realistically need to comply with an order.

The clause is clear and unambiguous. Parents will know the period in which LEAs must comply with orders. Any additional wording may lead to unnecessary arguments and confrontation about the definition of ``promptly'' and ``practicable''. To use the hon. Gentleman's analogy, to be told to produce something ``as promptly as practicable'' does not necessarily provide the clear idea that we believe the clause supplies about what the time scale should be. LEAs will, of course, be free to comply with tribunal orders as soon as is feasible, which may be faster than the time scales set out in regulations. Given that we envisage the likely time scales being as short as is reasonably practicable, I do not see anything further to be gained by adding to the clause, and potentially, doing so could lead to confusion and argumentation. For that reason, I hope that the hon. Gentleman will feel able to withdraw his amendment.

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 those comments. She started in a rather disappointing way and I was beginning to sharpen my axe for a potential vote, but she continued helpfully so I put away my axe, and I shall not press the amendment.

The relatively tight timetable is the important point. To be literary and archaic for a moment, we do not want a situation in which we put this off until the Greek kalends, or never. It wants to be done, it must be done and it is in the children's interests that it should be done. If the time scales are anything like those suggested by the Minister, they are acceptable. Even if a local authority were minded to play for time, there would not be much time to play for.

I shall try to draw the Minister on two points now, instead of dragging them into the clause stand part debate. First, what sanctions apply if a local authority—accidentally or deliberately—cocks a snook and does not comply? I should not ask a hypothetical question, but in what circumstances would the Secretary of State come down like a load of bricks, and what would be the result? It would be helpful to know that there are sanctions which, if necessary, could be enforced.

My second point—which, I confess, I had not noticed earlier—is consistent with some remarks made rather skimmingly this morning about the interaction with Wales. My reading is that subsection (2) implies that, as there will be regulations—to which the Minister helpfully referred—they would, in relation to Wales, require the agreement of the National Assembly. I fully understand that. Will the Minister tell the Committee—now or later—whether it is envisaged that the tribunal regulations will apply across the board, with the inference, subject only, for example, to provision about the Welsh language, that they will be available in England and Wales, and that they will not be different? The hon. Lady's comments are along the right lines, and I shall not press the amendment to a vote.

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

I hope that I can reassure the hon. Gentleman. I believe that I said at the start not only that we will lay down time scales, but that failure to comply with an order will leave an LEA open to direction by the Secretary of State or the National Assembly for Wales as appropriate. In the small number of cases in which parents feel that LEAs are slow in complying with an order, we would expect parents to return to the SEN tribunal for assistance. Currently, the tribunal can advise parents to refer their concern to the Department, which would certainly investigate LEAs that had been lax or slow in complying with an order. The clause will ensure that there are much stricter and more specific timetables, which will provide clarification for parents and local education authorities. First, LEAs will be less likely to fail to fulfil those timetables, and secondly, it will be clear to parents that if they do not fulfil those timetables, the Secretary of State or the National Assembly for Wales will be able to direct as appropriate.

In relation to the hon. Gentleman's question about Wales, we would envisage that there would be the same content, which is clearly important, but that there would probably be two sets of regulations.