Clause 7 - Duty to Inform Parent where Special Educational Provision made

Special Educational Needs and Disability Bill [Lords] – in a Public Bill Committee at 2:00 pm on 29th March 2001.

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Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon 2:00 pm, 29th March 2001

I beg to move amendment No. 23, in page 6, line 30, leave out ``inform the child's parent'' and insert

``secure that the head teacher inform the child's parent''.

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

With this it will be convenient to consider amendment No. 16, in page 6, line 30, after ``parent'', insert ``in writing''.

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

This is a probing amendment. I want the Minister to explain the phrasing of proposed new section 317A. Subsection (2) states:

``If the school is a pupil referral unit, the local education authority must secure that the head teacher informs the child's parent that special educational provision is being made for him at the school''.

That applies when a statement has not been issued but special educational provision is being provided.

Similar terminology is employed in subsection (3), which states:

``In any other case, the governing body must inform the child's parent that special educational provision is being made for him there''.

My amendment seeks to make it clear that the responsibility of the governing body is to secure that the head teacher has a duty to inform the child's parent, or to delegate that function. It is obviously an important section because parents must be are informed of their child's special educational needs and the provision that the school is making to meet them. If that is not already part of the school's procedure, the position should be rectified. However, the matter should be handled sensitively and those imparting the information should have the necessary expertise to answer any questions that parents might raise.

The Government may intend that governing bodies will normally delegate the role to the head teacher, acting as a chief executive. However, if they are not explicit, the danger exists that enthusiastic governors may take it upon themselves to do that; with the best of intentions, the chair of governors or the SEN governor may take on the responsibility. I speak without any malice towards those people, but there is a worry that that might be done inappropriately or insensitively.

A body representing secondary heads has argued that for a body or a member of a governing body to discuss a pupil's progress or needs with a parent is not in keeping with the Government's intentions in existing regulations or in their recent consultation document. As a governor, I have read that document, which emphasises that governing bodies have an overriding role with the head as the chief executive. My amendment should not affect the governing body's accountability in that respect, because the governing body should call heads to account when they fail to inform parents.

Section 317(2) of the 1996 Act defines the responsible person as being

``in the case of a county, voluntary or grant-maintained school, the head teacher or the appropriate governor''.

It does not necessarily follow that the responsible person with the duty to pass on the information or delegate it should not specifically be the head teacher. I would be grateful if the Minister could clarify the phrasing and tell us why my amendment is inappropriate.

Amendment No. 16 refers to passing the information in writing, which seems logical and usual when sensitive matters are being discussed. I note in passing that, if the amendment proved acceptable, the same provision would have to apply to pupil referral units and an extra amendment would be needed.

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 on to a good point when he states the need for sensitivity on this issue. It is a sensitive matter when children have special educational needs and a prescription of provision for those needs is being made. People may be intellectually and emotionally involved, and that needs careful handling.

I am minded of a recent incident involving a school. In 14 years of service in this place, I have not previously experienced such a situation. A racial allegation was made. The matter required the attention of the full governors and a good deal of time from the management of the school. I was satisfied that, in the end, the school had acted entirely properly. In the light of that, and because the parents of one child were especially unhappy about the matter, I suggested to the school that, if such cases were to arise, it might consider building an independent person into its procedures. Decisions would not, in that case, be seen simply as something cooked up within the school system, albeit by the governors.

The point raises wider issues of governorship, which we should perhaps not debate here. I mention it only because it is fresh in my mind, and because we must have regard to the sensitive interface between parents and school. I understand the idea that the right person for the role is the head teacher, which is the substantial point of the hon. Gentleman's amendment. It would certainly be helpful to have the Minister's input. Perhaps she could say how the code or guidance might tie the matter down or encourage such a practice.

The purpose of amendment No. 16 was more banal but, nevertheless, important. I am not suggesting that the right approach is a cold and impersonal letter, saying, ``Your child has the following problems; this is what we're going to do about them.'' That might be extremely inappropriate. The best approach might be for the teacher to take the parent aside and say, ``We will send you a letter shortly, which tells you about your son or daughter, how we see her or him, and what we are going to do.'' The intention behind the amendment was to return to the issue of specificity, which we debated earlier. If there is a lot of vague talk about doing something for the child, which is not tied down in writing, and no statement is necessarily involved, it will not be clear what would constitute delivering undertakings and meeting needs, and what would constitute a failure to meet needs. Unless there is an audit trail, simply taking the parents aside and telling them what the school will do would not be sufficient for future reference.

We approach the matter in a constructive spirit. We are aware of the sensitivities and anxious that the practice and the legal provision should be right. It would be stupid to create a legalistic provision that required only a narrow and formal response. On the other hand, if we merely provide for a general duty to inform, without an understanding as to how things should be done as a matter of good practice, vagueness might creep in, which could give rise to subsequent recrimination. The matter can be resolved, and I hope that the Minister will do it for us.

Photo of Jacqui Smith Jacqui Smith Parliamentary Under-Secretary, Department for Education and Employment 2:15 pm, 29th March 2001

Clause 7 is designed to bring clarity and consistency to the information given to parents on the identification of a child's special educational needs. Importantly, it therefore ensures that parents can play a part in meeting those needs, and raise concerns about the provision being made. It provides for parents to be informed when community, foundation and voluntary schools, pupil referral units and relevant LEA-funded nursery providers begin to make that special educational provision. In doing so, it addresses the potentially unsatisfactory situation in which parents are not always told that special educational provision is being made for their children.

Some schools tell parents that their children have been identified as having special educational needs and that provision is being made for them. Some schools tell parents that their children are receiving extra help, but not that they have special educational needs. Some schools do not tell parents at all, which leaves some parents misunderstanding the true position and some ignorant of the fact that SEN provision is being made for their child. Currently, the first time that parents find out that their child has been identified as having SEN can be when the LEA tells them that it is considering whether to assess the child for a statement. It is not only a case of ensuring that parents have information. If parents are not aware that special educational provision is being made, they are not in a position to use their knowledge and understanding of their child to help teachers to meet the child's needs. Clause 7 aims to ensure that the parents of children who have been identified as having SEN, but who do not have statements, are informed that special provision is being made.

In his amendment, the hon. Member for Oxford, West and Abingdon (Dr. Harris) raises the role of governing bodies and the distinction between the position set out in the Bill in relation to pupil referral units and that for schools. The LEA is responsible for those institutions in the case of pupil referral units, and the governing body is responsible in the case of maintained schools. That is why we have placed the legal duty to inform parents on those bodies. That follows the way in which such responsibilities are generally allocated in education legislation. However, a letter from an LEA informing parents that their child has special educational needs may be intimidating. Parents may be more comfortable if they are informed by the head teacher of a PRU. That is why new subsection 317A(2) makes provision for head teachers at PRUs to inform parents.

The same considerations are not necessarily true in the case of governing bodies. We want to give schools maximum flexibility in deciding who should notify parents. Governing bodies of schools, to which we have alluded in previous debates, must use their best endeavours to ensure that SEN provision is made for children. It seems appropriate that they should have legal responsibility for notifying the parents of children with special educational needs. Of course, they can choose to delegate that responsibility to the head teacher or the SEN co-ordinator, and we would expect that to be done in many cases. However, schools will have the flexibility to choose, and it is not appropriate to reduce that flexibility, as amendment No. 23 would do, by requiring the head teacher to inform parents in all cases.

Such flexibility is in keeping with our general approach to the responsibilities of governing bodies. For example, the recently issued terms of reference regulations for governing bodies show that they should play a strategic role, which implies that duties should be delegated. I see no conflict in recognising that while legal responsibility rests with the governing body, the responsibility for contact with the parent should, in most cases, be delegated to the head teacher or the SEN co-ordinator.

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

I want to reinforce the helpful formulation that the Minister has given. I understand that the obligation on the governing body would be to ensure that the information is delivered, rather than to do the delivering. That seems a perfectly reasonable distinction between a strategic and an operational function.

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

That is exactly right. The hon. Gentleman is extremely helpful this afternoon.

Photo of Hilary Benn Hilary Benn Labour, Leeds Central

Does my hon. Friend the Minister agree that it would be good practice if the communication—presumably in the form of a letter—came from a member of staff at the school rather than a named governor? An important principle has been raised. In my experience as a governor over many years, I communicated directly with parents only if they had raised a specific point with me that related to an appeal function or some such matter. Information about the progress and education of individual children ought, as a matter of form and good practice, to be communicated by a member of staff rather than by governors.

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

I agree that that would be good practice, and it is in line with our approach to governing body responsibilities. The legal responsibility is vested in governing bodies, and, in this case, they have the responsibility to ensure that that information is provided and for the strategic overview of how that takes place. Although it would be up to schools, it would be good practice for such information to be communicated not simply by a head teacher but possibly by a special educational needs co-ordinator or the pupil's form teacher.

Photo of Tom Levitt Tom Levitt Labour, High Peak

My hon. Friend is right that the regulations and the law should not exclude a governor from communicating. I can envisage a case involving a primary school in which the governor with responsibility for overseeing special needs had such a close relationship with the staff and the pupils that parents would consider it perfectly natural for that governor to communicate with them. It is right to leave the options open, although I accept my hon. Friend's point that good practice would point to the teacher in most cases.

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

My hon. Friends haves shown that the discretion and flexibility that the clause allows schools would be important in such circumstances.

Amendment No. 16, too, would limit schools' discretion in a way that would not be helpful. Schools would always have to inform parents in writing. The clause will not prevent schools from informing parents in writing if they want to do so, but many schools may decide that informing parents verbally might be a better way to fulfil the duty. For example, it might be appropriate for such matters to be discussed at a parents' evening. Alternatively, it might be appropriate to invite a parent who, for the reasons mentioned by the hon. Member for Daventry, might not be confident about receiving a letter, to discuss the matter so that that parent could have his or her anxieties dealt with immediately. Not everyone is as used to receiving a letter as Members of Parliament are, whether it is formal or otherwise. To restrict the communication of such information in that way would be unreasonably inflexible. Schools may prefer the more informal approach, which might be the most appropriate in such circumstances. However, the school should have flexibility.

The hon. Member for Daventry expressed anxiety about whether, by allowing schools not to communicate such information in writing, the Government might leave parents without necessary information. Parents can be assured that they will know what is going on because of the revised SEN code of practice and its emphasis on keeping parents informed of action taken to help their child and the outcomes of that action. The strategies employed to help a child with SEN will be recorded in an individual written education plan that will contain information about short-term targets for the child, the teaching strategies to be used, the provision to be put in place, the date for reviewing the plan, and the outcome of any action taken. The guidance will also make it clear that the individual education plan should be discussed with the child and the parents.

I do not believe that I am being too optimistic in suggesting that there is consensus in the Committee about the importance of keeping parents informed about their children's special educational needs so that they are engaged in the process. That will be beneficial not only because parents have a right to such information, but because it is likely to lead to better educational outcomes for their children, which is our primary concern.

As far as school governing bodies, local education authorities and pupil referral units are concerned, we believe that the clause as drafted puts the responsibility in the correct place. It also provides appropriate flexibility in terms of the method of communication, and on that basis I hope that the hon. Members for Oxford, West and Abingdon and for Daventry feel able to withdraw their amendments.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon 2:30 pm, 29th March 2001

I was interested to hear what the Minister had to say. I accept her point about the difference between responsibility and the flexibility to delegate it, and on that basis I am happy to withdraw my amendment, which tends to remove some of that flexibility. In response to a point made by the hon. Member for Leeds, Central (Mr. Benn) she said that the governing body should be obliged to ensure that parents are informed, but the clause as drafted states merely that

``the governing body must inform''.

Perhaps it would clarify matters if the clause could be amended at a later stage, so that it states that the governing body must secure that the child's parents are informed. That would satisfy everyone, because although it would make it clear that the duty to secure provision of information lies with the governing body, it is not so bald as to state that

``the governing body must inform''.

Such a statement might lead some governing bodies to believe that, on the altar of flexibility, they can wade in.

The hon. Member for Leeds, Central and I have made an important point. Governors sometimes need help to know what their responsibilities are and the way in which such matters are delegated in schools. Although I shall withdraw my amendment, I leave that thought with the Minister.

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

This has been an extremely useful debate and the Minister has done her best to address the Opposition's concerns. I intend not to brandish my amendment but to touch on two or three points that remain, or which have been prompted by the debate. The first concerns cases where there is a temporary special educational need, including temporary disabilities, such as a broken leg. We do not often talk about such cases, but they are worth considering and might be consistent with the Minister's wish to be flexible in the delivery of provision. As far as I know, such cases constitute a special educational need and require some addressing by teachers, although the Minister may tell me otherwise. In my experience, they have almost always been handled well and are relatively easily manageable. It would be helpful if the Minister could say whether such cases will be excluded.

My second point concerns provision in amendment No. 16—which, as I said, I do not intend to press—for a proper audit trail. Here, I am thinking much more of long-term or permanent provision than of temporary provision. I wonder whether the matter might be served by establishing an understanding, at least, that confirmation in writing will be secured where requested by the parent. Although we might not be in the business of drafting last-minute amendments, perhaps we should consider providing guidance. I shall leave that thought with the Minister.

That leads me neatly to my third point, which in a sense is a by-product of our now relatively rapid progress. Of course, the clause is concerned with provision and notifying parents of it. If there is provision for a special educational need, ipso facto there is a special educational need to provide for. Where that is so, clause 2—which will oblige LEAs to provide information for the parents of a child with special educational needs—cuts in. Before we move on, it would be helpful if the Minister could satisfy us on two points, the first of which is the nature of the information network involving the school and the LEA. In reality, it is most likely to be concerned with funding from special educational needs budgets and the wish to access funds for the provision in question. We need to tie together the different means by which the same condition, and provision for it, is notified to the LEA. The second point is the question of closing the loop. If that happens, how will the LEA discharge its obligation to provide information to the parent?

Let us envisage a scenario in which a headteacher or special needs co-ordinator, acting with the governors' knowledge and consent, or even at their instruction, discusses with the parents the provision required for a child with challenging behaviour. The matter would go to the LEA, as part of the normal business of trying to access special needs budgets. The LEA could then advise the parents, for example, about their legal rights.

I do not know exactly how that process would work. Does the Minister envisage a standard protocol? I am not sure that there should be one. If a matter is comparatively minor, a heavy mailing out from the LEA might be inappropriate, and poke up concern disproportionate to the case. Nevertheless, we must think through how the obligation to advise the parent about provision fits in with the LEA's obligation to advise in cases of need.

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

Although I realise that the broken leg to which the hon. Member for Daventry referred was just an example, I do not see that as a special educational need. I agree with the hon. Gentleman that schools should deal with such a situation practically, quickly and without undue fuss, and discuss with the parents what would be appropriate for the child. However, I do not believe that that example comes under the general category of special educational need.

We got slightly bogged down in the second part of the hon. Gentleman's questions, and perhaps that was me—it is Thursday afternoon. The clause requires schools to give parents information about the provision of special educational needs. That links it to clause 2, which gives LEAs a statutory duty to provide information and to make an independent parental supporter available to parents whose children have special educational needs.

The hon. Gentleman moved into the area of funding. LEAs have an important role in monitoring special educational needs and a duty to identify pupils whose special educational needs they should assess. We discussed assessment for a statement, and it is clear that LEAs cannot do that without good communication with schools. Currently, LEAs have responsibilities to assess children's special educational needs, to make statements if appropriate and to ensure that funding is available for the provision required in a statement. That answers some of the hon. Gentleman's questions. If he was concerned about the monitoring of the financial situation, I agree that where resources are delegated to schools, there must be clearer accountability frameworks. The Government are developing those to clarify what LEAs should expect from schools—which must also be communicated to parents—and what they, as LEAs, should provide. I hope that that goes some way towards dealing with the hon. Gentleman's points.

On those bases and because there is general agreement on the objectives of the clause, I should hope that the hon. Members for Oxford, West and Abingdon and for Daventry will withdraw their 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 who is doing her best. If I did not make myself clear, I must explain my concerns, which have largely been answered.

My prime concern was not about funding. My point was that if a school had a pupil with SENs, it would presumably get in touch with the LEA to obtain advice. Given that situation, I am not necessarily discussing a statement; I am discussing other needs. Where a school tried to obtain additional funds for extra provision would come out in the wash. That is a simple statement of fact that was not designed to pave the way for a long debate on funding, which, of course, would not have been allowed.

My concern is that when a parent gets the unpalatable or surprise news that their child has SENs—the example that I gave of challenging behaviour that must be managed within a school is perhaps the most relevant—they will hear it from the governor, the head teacher or by whatever method the governors consider appropriate. By inference, a LEA obligation cuts in at that time to ensure that a parent is involved. Indeed, the LEA has that general obligation under clause 2. That does not create a difficult situation, but it does require greater thought and further consideration of both the code and the kinds of information that are available to the parent. For example, the school tells the parent that there are SENs—I do not intend to pursue the question of whether that should be done in writing—but the parent should have the right to access material from the local authority that explains what SENs are and how they operate, which is a consideration that goes wider than the current narrow provision.

My concern is no more complex than that and I suspect it to be a matter of good practice, which I shall leave to the Minister's good sense to sort out.

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

We have made some progress. It is worth pointing out that we see a continuing important role for LEAs in relation to the type of advice that the hon. Gentleman was discussing in the area of SENs. He is right, and we now have a clearer idea about the relationship between clause 2 and that situation.

Once a parent has been informed that their child has SENs and is receiving provision from and by the school, the parent may want to avail themselves of the parent partnership services offered by the LEA. It is therefore important—I am unsure whether we touched on this in our debate on clause 2—to remind hon. Members that under clause 2 provision for an independent parental supporter is now available for parents of all children with SENs, as opposed to the current system, where the named person is available only for parents of children with statements. Yes, at that stage the parent partnership scheme may be appropriate to support the parent, and that is clearly an important objective of the scheme, which would be organised under the auspices of the local education authority.

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

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 ordered to stand part of the Bill.