Clause 17 - Special educational needs and disability tribunal

Special Educational Needs and Disability Bill [Lords] – in a Public Bill Committee at 10:30 am on 3rd April 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)

As there is not a large number of amendments for the Committee to consider—[Interruption.] The Government Whip is in some difficulty; if he cannot see the Opposition, goodness knows what he will do to his own side. I wonder if the blinds could be lowered.

As I said, there are not many amendments; I think that we may have caught the spirit of the Government's commitment not to table more amendments, about which more anon, but some interesting points need to be made. The best way to raise them is probably in short and pithy clause stand part debates.

On rereading the relevant clauses last night, it seemed to me that lessons from settled practice over the Disability Discrimination Act 1995 have been well learned. Saying this is probably a terrible hostage to fortune—certainly Ministers should not ever say it—but the provisions seem technically well-conceived. I hope that they are, because we have no ill will towards them. Indeed, we want them to work properly.

In that spirit, I wish to speak about the tribunal. About 20 years ago, I had some experience of a tribunal's operation, and also about how this place works. When I first became a Minister, I was told that as I had already sat on a tribunal and knew about such things, I could handle the clauses of the Education Act 1993 that established the tribunal, so I readily undertook to do that. However, reflecting on my experience leads me to make one or two points.

The tribunal will convert itself from a special educational needs tribunal into a tribunal that can also hear complaints made under the Disability Discrimination Act on the conduct of education in schools. That will result in more traffic. The explanatory notes helpfully touch on the fact that that is likely to lead to a requirement for further resources. It is suggested that the extra number of cases will lead to an additional cost in the first year of about £400,000, rising to £1.25 million as awareness grows. We have no objection in principle to people having rights of redress. We back the Bill, and will not complain when people go to the tribunal or to court to claim their rights. However, I should be grateful if the Minister would say a little more about the costs and about the element of conversion.

Within the framework of special educational needs, it is reasonable to ask whether the tribunal has worked, and whether the system has been more or less litigious than expected in determining the appropriate provision for the children in question. Does a child need a particular provision? Does a school need to be specified? Do a certain number of hours need to be specified?

Our most important discussion on part I was on whether the Bill needed to put the interests of children first, and whether the absence of that priority would help or promote their interests. We remain sceptical about that, but at least the debate was about education. I was a member of the agricultural land tribunal, which had a legal chairperson and two expert assessors, one from either side. When I had done the job for a while, I regularly used to say that I could not remember who had encouraged me to go on the panel, and I did not regard myself as anything other than a practitioner. One considers such matters with an experienced eye, but in a legal framework.

The tribunal will no longer cover only special educational needs cases, as it will also be a disability tribunal. The Under-Secretary of State for Education and Employment, the hon. Member for Barking (Ms Hodge), is nodding. We will come to the exercise of jurisdiction in joint claims later. I do not want to chop words or use them too loosely, but the tribunal is, in a sense, a court enforcing human rights legislation. That creates a new dynamic, as different shoulders are needed to consider such matters.

In consideration of school provision, the focus will be on the child. However, the chairman must be aware of other human rights issues, such as those involved in employment law and gender or racial prejudice. The context therefore ceases to be purely educational. That is not a difficult change, and I do not suggest that it is wrong to make it. However, it is important that the legal chairperson and the lay members of the tribunal, the appointment of whom the disability organisations will not be consulted on, have broad training.

The tribunal's volume of work is now relatively established and broadly predictable, but it may grow and become unpredictable. That work will have a different nature, as it will bring in wider considerations. I am not arguing that the tribunal is the wrong body to handle such issues, because it is not, certainly in relation to schools--we will debate further and higher education later. However, the tribunal and the Ministers who plan the system must be sensitive to the wider issues. Ministers' guidance to the tribunal and the regulations under which it operates must also have regard to those issues.

The argument on whether entitlement to speech therapy should be specified in a statement is critical to the relevant pupils and parents. It may be of interest, as a precedent, to the LEA. Such matters have been the substance of the first seven or eight years of the tribunal's work. Now there will be a wider context, and there may be major human rights questions about what is or is not functional discrimination as it affects a school. For example, although the provision is not strictly for schools, I have recently explored with the awarding bodies the offence that might be caused when questions with religious overtones are set in a public examination. They might refer to the keeping of pigs, for example, about which Muslim pupils may feel uncomfortable writing answers.

I do not want to debate those issues now—it would be out of order for me to do so. However, there are some wider implications. There is, and I do not say this derogatorily, a growing legal interest in human rights. I can even imagine persons close to the Prime Minister engaging with the special educational needs and disability tribunal in its new role in order to carry forward some great flagship case. Ministers and the tribunal must be aware of these issues, plan for them and aim to contain them. That is not impossible. Cases do not always have to go through the tribunal—parent partnerships and conciliation can be used instead. We need to go into this with our eyes open.

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

I want to make a couple of points by way of amplifying or specifying some of the issues raised by my hon. Friend. I will phrase them, in as friendly a way as possible, as questions to the Minister. Although my hon. Friend is right that these are not principally matters of cost, we need some indication of the Government's estimates of the volume of cases and the resultant cost. It is hard to come to a conclusion about that, but we need a rough approximation of the Government's estimates.

The second issue concerns representation. We are all anxious to maintain the informality of the tribunals. That issue was touched on in the other place, when these matters were debated there. As my hon. Friend has already said, the informal nature of the tribunal is important if we are to avoid disadvantaging parents and children. It is important to strike a balance between informality and proper representation. Those on one side in a hearing could be disadvantaged if they are not familiar with such proceedings and feel bamboozled or intimidated.

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

My hon. Friend is amplifying my gist very well. Does he agree that whereas tribunals have generally been seen over the years as informal forums for the resolution of disputes, once lawyers get involved in the process, a kind of arms race emerges? Cases can involve a learned counsel, leading counsel and considerations can become protracted, at huge expense. I know from my own experience that that is a matter of some concern.

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

Indeed, and that is what I am moving on to. The atmosphere created in these bodies, which will have legal force, is critical if we are to give the parents and children who come before them the best possible opportunity to make their case. The necessary balance between informality and proper representation was debated at some length in the other place, and I am sure that the Minister will want to comment on it.

The third issue is the role of the child in such circumstances. That could be a difficult matter. Lord Ashley of Stoke referred to it in the debate in the other place. He made it clear that the tribunal represented an opportunity for children to put their own perspective. However, the child would need to be assisted in that, and the environment of the tribunal should allow a child to put his or her case, which may be different from that of the parents. The child's view on a given issue might differ from that of the parents. We must ensure that the tribunal is not alien to the expression of such views.

I am mindful of the words of Baroness Blackstone in the other place. She said:

``Even in the informal environment of the tribunal an unassisted child is likely to be at a disadvantage which may lead to increased use of representation generally, affecting in turn the informality of those proceedings.''—[Official Report, House of Lords, 6 February 2001; Vol. 621, c. 240.]

Given the tribunal's multifaceted brief—it will be involved in issues of disability discrimination and of a narrowly educational nature—those different levels of representation may exacerbate the problem of representation, parental involvement and children's involvement in what we hope will be a positive outcome. This is not an issue of principle; we want to give the tribunals and the Bill a fair wind. However, these details require clarification, and I look to the Minister to provide it.

Photo of Margaret Hodge Margaret Hodge Parliamentary Under-Secretary (Department for Education and Employment) (Employment and Equal Opportunities) 10:45 am, 3rd April 2001

Clause 17 extends the jurisdiction of the special educational needs tribunal to cases of disability discrimination in schools and renames it the special educational needs and disability tribunal. Its reconstituted jurisdiction will extend only to England and Wales, as does that of the current special educational needs tribunal.

The hon. Members for Daventry (Mr. Boswell) and for South Holland and The Deepings (Mr. Hayes) raised the issues of cost and traffic. It is very early days and therefore difficult to judge. There is not even sufficient case law under part III of the Disability Discrimination Act for us to predict with any confidence the volume of cases that will be brought under the powers in the new part IV. However, I would draw the attention of both hon. Members to the fact that we established a conciliation service under the Disability Rights Commission specifically to minimise the number of cases that would need to come before the tribunal.

The hon. Member for Daventry was with me last night at the reception for disability organisations when I referred to that service as a key element of the role of the new commission. I am watching its development with great interest. It should minimise traffic.

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 is right. On Second Reading, I said that experience of the operation of the 1995 Act has shown that employment tribunals, which hear cases relating to part II duties and to which access is relatively easy, have borne very much more traffic than the county courts, which hear cases in relation to part III duties. I accept that that occurred before the establishment of the Disability Rights Commission. My concern is that because this is tribunal territory, which, for an applicant, is relatively easy to access and relatively cost-free, there might be more traffic than either of us anticipates.

Photo of Margaret Hodge Margaret Hodge Parliamentary Under-Secretary (Department for Education and Employment) (Employment and Equal Opportunities)

That might be true, but I hope that the anticipatory duties on schools and LEAs will ensure that action is taken before a tribunal is needed. I accept the difference between the county court and the tribunal, but as there have been so few cases so far, none of us has much experience of part III. Nevertheless, we make estimates of costs, and these have been supplied to the Committee in documents relating to the Bill. The tribunal has estimated that the cost will be approximately £400,000, rising to £1.25 million in the longer term, and that 20 more staff will be required. However, I would put a number of provisos on those figures as they are guesstimates, and we shall have to revisit them in the light of proper knowledge.

The hon. Member for Daventry also talked about whether the members of the tribunal would have the appropriate knowledge and experience to deal with discrimination matters in relation to disability—

Photo of Margaret Hodge Margaret Hodge Parliamentary Under-Secretary (Department for Education and Employment) (Employment and Equal Opportunities)

Yes, or training. I can give the hon. Gentleman some reassurance on that.

First, the regulations that govern appointments to the tribunal will require its members to have knowledge of disability issues. That is one way of ensuring that appropriate people participate in the tribunal. Secondly, the composition of the tribunal will be not dissimilar to the current composition of the SEN tribunal, in that the chair will have a legal qualification and a minimum of seven years experience, and be appointed by the Lord Chancellor. The tribunal is a non-departmental public body, and has for some time been planning for expansion and changes in its duties and functions. It has also been training people appropriately.

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend

I previously referred to the devolution conundrum, whereby some devolved issues, which are the responsibility of the Welsh Assembly, are relevant but there are other, non-devolved matters in the same connection. The tribunal is one such matter, because it will consider issues relating to schools, but the Lord Chancellor's Department is not a devolved Department and the tribunal is not a devolved tribunal. Have there been any discussions with the National Assembly about the possibility, at some future date, of it having a more direct role and about the establishment of a separate tribunal in Wales? In addition, what administrative arrangements will be made in the immediate future, once the tribunal has been established?

Photo of Margaret Hodge Margaret Hodge Parliamentary Under-Secretary (Department for Education and Employment) (Employment and Equal Opportunities)

English lay members of the tribunal will be appointed by the Secretary of State for Education and Employment, but the National Assembly for Wales will appoint Welsh members. Clearly, we must be extremely sensitive to the Welsh dimension as the development of the tribunal proceeds.

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

May I first respond to the point made by the hon. Member for Bridgend (Mr. Griffiths). It is not simply a matter of the tribunal's jurisdiction. Under clause 18, the tribunal's power to make remedial orders will be binding on LEAs in Wales, despite the fact that they are bespoken to the National Assembly. Therefore, an extra-territorial jurisdiction will impact on them.

I believe that, in its first seven years of operation, the SEN tribunal has established considerable credibility and done a good job for all parties involved. It is important that we build on that credibility and ensure a constructive outcome.

Photo of Margaret Hodge Margaret Hodge Parliamentary Under-Secretary (Department for Education and Employment) (Employment and Equal Opportunities)

I, too, believe that the SEN tribunal has been a success story, which we want to develop. We must be sensitive to the Welsh dimension, and review the impact that the legislation has on Wales. It is tricky, because the measure involves both a reserved power and a devolved responsibility, so we must ensure that the two interact effectively.

The tribunal has a comprehensive and on-going training programme for its members, which includes training on the legal developments, on the new powers created by the Bill and on the implications of the Human Rights Act 1998, which the tribunal will take seriously. The tribunal will enforce new rights under disability discrimination legislation, but it also has a history of enforcing rights with respect to special educational needs. We selected the mechanism for enforcing those rights for many of the reasons that Opposition Members have described. It is informal, it works more quickly and sensibly, and it is more responsive to a child's needs. It puts the educational remedy at the heart of the work that is done, which is vital in ensuring that children develop their potential without suffering any unnecessary disadvantages from discrimination or from their special educational needs.

The Disability Rights Commission will be preparing guidance, which will support and inform the tribunal in its new role. We have examined all the perspectives from which the Human Rights Act 1998 might affect the Bill, and have ensured that the Bill complies.

I want to mention one or two issues raised by the hon. Member for Holland and The Deepings.

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

South Holland; I do not want to offend people in North Holland.

Photo of Margaret Hodge Margaret Hodge Parliamentary Under-Secretary (Department for Education and Employment) (Employment and Equal Opportunities)

I am sorry; I want to answer the hon. Member for South Holland and The Deepings. The desire to keep the proceedings informal reflects our approach to respecting the rights of the child in the tribunal. In seeking effective determinations and in pursuing the child's rights in education, it is better that a parent should bring a case on behalf of the child. Parents have a better chance of identifying the child's rights at an appropriate age and of mounting a challenge.

The tribunal, rather than any other jurisdiction, is appropriate because it can work more swiftly and effectively, and can focus on an educational outcome for the child, rather than becoming entangled with lawyers and giving an overly litigious and formal impression. The child's rights would be less well served by that than they would by the more informal tribunal.

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

I am sympathetic to the Minister's case. She may want to deal with two issues that I raised, first about disagreements between parents and children—which is a possibility particularly relevant to slightly older children in secondary education--and secondly, about circumstances in which parents are no longer in loco parentis, for whatever reason. My noble Friend Baroness Blatch raised the latter point in the other place. A conflict of interest might arise with respect to children in care or children whose parents were not in a position to represent their interests, if the local authority were called on to represent a child as well as putting its own case. That is a sticking point in the Minister's otherwise persuasive case.

Photo of Margaret Hodge Margaret Hodge Parliamentary Under-Secretary (Department for Education and Employment) (Employment and Equal Opportunities)

As to the first point, we are ensuring that the rights of the child are protected in other ways. For example, under the new tribunal regulations, which will come into force in September, local education authorities will be required to state the views of the child or to state why they have not ascertained them. That will be covered by regulation 13. We plan similar provisions in disability-related tribunal regulations. I hope that that provides some comfort for the hon. Gentleman.

When a child's parents are no longer in loco parentis, social services departments will represent the child's interests and act in loco parentis in relevant circumstances. Local authorities have a duty under the Children Act 1989 to promote the welfare of the child. That may place the relevant departments in conflict with the local education authority, but each would observe the separate duties imposed on it by law.

Photo of Margaret Hodge Margaret Hodge Parliamentary Under-Secretary (Department for Education and Employment) (Employment and Equal Opportunities)

It is a Chinese wall.

I have explained how we think the system will work in practice. The issues raised by Opposition Members are important, and we considered them when we framed the duties of the tribunal.

Question put and agreed to.

Clause 17 ordered to stand part of the Bill.