Clause 5 - Unopposed Appeals

Special Educational Needs and Disability Bill [Lords] – in a Public Bill Committee at 1:45 pm on 29th March 2001.

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Question proposed, That the clause stand part of the Bill.

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

I do not want to detain the Committee at length but it may be useful to have a short debate about unopposed appeals. When the conciliation procedures and the parent partnership have not worked in resolving disputes and the parents have availed themselves of their right to apply to the tribunal, the tribunal will make a determination because the local authority no longer offers evidence. That is an unfortunate situation and not ideal. It suggests that the authority, with its own resources and expertise, will go to the courtroom door and then walk away from it. The parents and the child in question will have been exposed to all the hassle of such a contentious approach until then. I am not suggesting that there is a way of removing that, or that there should not be a provision for the procedure to take place. Clearly, it is sensible if the local authority is prepared to withdraw. It is a lot better than having to go through the fiction of a hearing in order to make a determination, which is, as it were, a foregone conclusion.

It is worth the Committee taking time to pause and examine the circumstances of statementing. I do not think that I need to make a long speech about it. Indeed, I regret the absence of my hon. Friend the Member for South Holland and The Deepings (Mr. Hayes), who has another engagement this afternoon, because he has had a great deal of hands-on experience about the matter. However, most hon. Members have experience from their constituencies. Statements are not always as specific as we may hope and I suspect that that is the main contention between parents and LEAs. The core business that the tribunal must do relates to the amount of specification that takes place.

At the beginning of my remarks this morning, I averted to the continuing concerns of the Action on Entitlement consortium. It is clear from the consortium's submission to members of the Committee that it is not happy about the matter, in terms of professional reports and how and what part 3 of a statement should specify—I think that is the retained phrase after the Government had second thoughts about altering it to ``setting out''—and contain. The consortium suggests, in relation to a particular case, that the statement may simply and vaguely specify therapy from a speech and language therapist. As has been said, a child could get only 10 minutes a term.

I am aware that the matter was debated in another place by two heavyweights, Lord Baker of Dorking on our side, and Lord Davies of Oldham for the Government and that the latter said:

``the hours of speech therapy will be specified''.—[Official Report, House of Lords, 20 February 2001; Vol. 622, c. 631.]

That does not appear to be precisely tied down, and the Minister may not be able to do that now. It may have to be introduced by guidance and the final version of the code. However, it is important for the Committee to have a sense of the matter because it is probably the area of greatest contention between parents and LEAs. It is the type of matter that will reach tribunal, and an LEA might fight hard until it got to a tribunal before withdrawing its objection and allowing the tribunal to determine to the suit of one party. We should ensure that parents get their rights and have a process that is reasonably specific. That is clearly how parents feel, and it is a matter of good practice for the local authorities.

With these general considerations in mind, I hope that the Minister will be able to respond, not by speaking substantively about the concept of the unopposed appeals that clause 5 prescribes—unopposed appeals are better than opposed appeals—but to try to cut out the problem at an even earlier stage, ideally by conciliation. There should be a determination all round by parties, including the LEA and its professional advisers, to make the matter reasonably straightforward. They should say what they mean, and what they say must mean something, and amount to a meaningful provision. Members of the Committee without a party handle will be concerned about the matter, and at this stage, if not later, it would useful to have a statement from the Minister.

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

The provisions of the clause will ensure that, when an LEA notifies the SEN tribunal that it will not fight certain appeals, the appeal will be treated as decided in the parents' favour. I am not sure that that has been stated clearly. The LEA will have to take action to meet the parents' wishes within a period that will be set out in regulations.

The provision will encourage the early settlement of cases by giving parents the assurance that LEAs will be obliged to fulfil any commitments that they make in agreeing that a case can be resolved without going to the tribunal, even though it will not require the tribunal to make a formal order. For that reason, the provision will be doubly beneficial.

The change will encourage parents and LEAs to reach early agreement about how the child's needs might best be met, without delaying until a formal tribunal hearing is convened, thereby shortening the time in which the child may not be receiving the provision that would be important for him. Encouraging parents to accept LEA concessions will also help to avoid unnecessary tribunal work and expense on cases, some of which are withdrawn at the last minute—to the benefit of no one. For example, in 1999-2000, more than 1,200 cases were withdrawn before being heard. The provision will help the parent and make the system more efficient to the benefit of all.

The hon. Gentleman rightly said that the process of assessment and determining the statement might be the subject of the parents' argument. It is worth pointing out that the clause affects only appeals against decisions by the LEA not to make a statement of SEN, not to reassess an existing statement or not to substitute a school named in a statement for a different school named by the parents. Other more complicated types of appeal have been excluded, such as those against the contents of statements. Those appeals will need the tribunal to consider the parents' appeal in detail and to make a more appropriately detailed order than need be the case in such circumstances.

However, the hon. Gentleman is right to say that we must make sure that the statements function most effectively, and that is part of the reason behind our revision of the code of practice. I agree with him that the funding and proposals that the Government have introduced for parent partnership schemes and for conciliation in dispute resolution will be important, but so will the revisions that we are making to the code of practice. Given the representations that have been made about the proposed changes to the code, it is worth emphasising that we have no intention of weakening the legal protection for children with statements, nor of encouraging vague statements.

I agree with the hon. Gentleman that vague statements do nothing to secure the right help for a child with SEN nor help a school to know what is required of it to assist a child to learn and progress. It might be helpful if I repeat some of the clarifications made by my right hon. Friend the Secretary of State on Second Reading. We will make it clear that LEAs are required to specify provisioning statements, as they always have been. We will retain the requirement in the SEN regulations for provision to be specified, matching the terms of the duty on LEAs set out in the Education Act 1996.

Furthermore, the code will state clearly that statements should describe clearly all the child's special educational needs in full. They should set out the main objectives that the special educational provision aims to meet and specify clearly and in detail the provision required to meet each of the child's needs. The statements should describe the arrangements for setting shorter-term objectives for the child and any special arrangements for the annual review of the statement, and stress the importance of the school monitoring and evaluating the child's progress during the year. They should emphasise the importance of the local education authority monitoring the child's progress towards identified outcomes with the school. The revised code will be a significant improvement over and above the current code. I hope that it goes some way towards reassuring people who have been worried about such matters.

The guidance will make it clear that there may often be a need for provision to be expressed in terms of hours, equipment or personnel. It will make it clear that local education authorities must not have blanket policies not to quantify provision in statements. In another place, we also made a commitment to enhance guidance on assessments so that it clearly states that LEAs should not introduce blanket policies to prevent people who advise them from commenting on the amount of provision that they consider appropriate for a child. Given those reassurances on the statementing process, and my account of what we hope to achieve through the clause, I recommend that it should stand part of the Bill.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment) 2:00 pm, 29th March 2001

The Minister's statement has been helpful. It substantially repeats the Secretary of State's equally helpful statement on Second Reading, as well as reassurances that were given in another place.

It will, perhaps, not be possible to finalise some details concerning the specifications until the code is produced. However, every Committee member wishes, as far as possible, to clarify the matter. That is our common endeavour. We wish to ensure that situations do not arise in which local authorities are either wilfully vague or—to paraphrase the Minister's injudicious words—shut their eyes and face towards the possibility of receiving advice or of excluding entire categories of applicants or types of provision from a specification. The Committee has almost clarified that matter, and I do not wish to contest the clause.

I am sure that the provision for unopposed appeals will be helpful. However, I want the Minister to confirm that it is intended to address what I might term non-determination of a request for a statement. If an argument were to arise about the content of a statement, the matter would be considered by the tribunal, which might properly make recommendations that were not fully consistent with the wishes of either the parents or the local authority but might be their own choice. Have I understood that correctly?

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

Yes. The clause relates to appeals against a decision by a local authority not to make a statement of special educational needs, not to reassess an existing statement, not to make an assessment of special educational needs, and not to substitute a school named in a statement for a different school named by the parents.

More complex types of appeal have been excluded for the reason mentioned by the hon. Gentleman: it might be appropriate for the tribunal to consider the parents' appeal in greater detail—for example, it might be helpful for a tribunal to consider the contents of a statement.

Question put and agreed to.

Clause 5 ordered to stand part of the Bill.

Clause 6 ordered to stand part of the Bill.