Clause 18 - Jurisdiction and powers of the tribunal

Special Educational Needs and Disability Bill [Lords] – in a Public Bill Committee at 11:00 am on 3rd April 2001.

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

With this it will be convenient to discuss amendment No. 20, in page 17, line 29, after `relates;', insert—

`(aa)includes power to invite local education authorities and education providers to re-examine their procedures and provisions for dealing with matters of wider application raised by the resolution of the particular case;'.

We are still dealing with tribunals. I hope that hon. Members will not repeat what was said on clause 17.

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

Thank you, Mr. O'Brien. We shall not do that.

Amendment No. 19 is about the importance of redress, which can be the cause of great emotion. In the other place, views on that matter were divided, as they may be in the House of Commons. Some hon. Members—they may not be members of the Committee, but they should show themselves as we need to debate the matter—believe that the tribunal should be able to order pecuniary redress. I do not seek to exclude the caveat that rules out pecuniary remuneration. I agree with the Minister that that should not be included in the Bill.

Although an argument can be made in favour of pecuniary redress, it is, on balance, not right. The strongest argument in favour would be in cases of what might loosely be called wilful or delinquent behaviour by a local authority or a school's governing body. People may feel strongly that an LEA or governors should be punished by way of a fine or punitive damages to stop that happening again.

Were you to allow it, Mr. O'Brien, we could have a long debate on the impact of damages in cases of medical negligence—on whether such damages advance the nation's welfare or have negative consequences. I shall not be tempted down that route. Redress is provided for in equal opportunities legislation, and for gender and racial discrimination, but the Bill does not provide for it. Is the Minister comfortable about that? The balance is not right, and the amendments allow me to probe what the tribunal can order.

Paragraph 91 of the explanatory notes include a helpful list of the tribunal's

``wide powers to order any remedy''.

The list of powers should include the possibility of securing an apology or a re-examination of the case. I have singled out those two points because distressed parents or relatives often want those things to happen after a tragedy has occurred.

This may be neither the time nor the place for personal confession, but many of us will have experienced something pretty nasty or distressing, such as a death in the family. The financial implications for the loss of a life are small under English law. There may be damages for the loss of a business partner, a parent or a potential earning stream that would finance a child's education, but damages for death itself are comparatively small, a fact that feeds into my argument that a financial contribution would be inappropriate.

Another factor is what I might loosely call the Railtrack argument. Railtrack is a private sector company, but if all that we do every time that it fails is fine it, we make it more difficult for the company to put matters right. In the case of SEN, because of the size of the maintained sector, most of the traffic would be in the public sector of education, and any fines would come out of other educational provision.

What do relatives want? I shall recite the sad case of a family in my constituency. The husband and bread winner volunteered to help in a local country park, and met with a fatal accident when driving a dump truck as a volunteer. Someone slipped and put a JCB bucket through him. In due course, the family came to see me about the case. As people do in broadly similar, though perhaps less tragic, incidents, the family wanted the public authority to apologise, and it did so, most generously. The family also wanted—I am almost repeating its words—such events to be prevented from happening again, as a contribution towards the loss of its loved one.

In the real world, we know that some accidents are not as easy to predict as wise-after-the-event tabloid newspapers may say. Accidents may arise through unsatisfactory but institutionally embedded practices. The local authority may not be doing its job properly or sending the right signals. We must provide some differentiation.

It is not pleasant for any parent to have to make a case; I almost said that that is not pleasant even when the case is won. Life must go on, but parents want to feel that something positive has been achieved. The right remedy is needed. In my experience, that is not always easy, and the climate of litigation and litigiousness on which we have already touched tends against it. An admission that a terrible mess has been made in a specific child's case, and an apology for it, can be an important solvent of grief. That is the point of the amendment.

Amendment No. 20 moves us from the particular to the general. Mirroring the remarks in the sad case to which I referred, parents will say that if working practices are unsatisfactory, the public authority—most schools are public authorities—must ensure that something is done about the problem so that the situation is better in future. It would be unwise to stray into other territory, but we could have a long debate by analogy with, for example, institutionalised racialism. I do not want to do that, but some concerns must be dealt with. Incidentally, in my county, which does not have a particularly high component of ethnic minorities except in one or two places, I had a constructive conversation with our chief constable about his policies. He gave satisfactory answers and had clearly dealt with the issues.

If something goes wrong, and a case goes to tribunal, it is not just the money that counts, particularly for the individual. Although we should not forget the prescription for educational remedy, because that is the central point, it is sometimes important simply to have an LEA or a board of governors say, ``We got it wrong, but we are sorry and we are doing something about it.''

Amendment No. 20 sets out what would be done about that. If an LEA had had a dusting down at a SEN tribunal, it would be foolish and inappropriate of it simply to say, without its making any real changes, ``Oh well, we lost that one. Some you win, some you lose. On to the next.'' We want LEAs to say, ``We got it wrong. Perhaps we can learn from that. Perhaps we could do the children in our care and ourselves some good if we adopted a more positive and proactive attitude and actually did something about the problem.'' The Minister and Conservative Members would want that, and the amendment is intended to achieve it. In other words, out of a dispute may come some provision for specific educational remedy and, if appropriate, a generous apology. That must not be a matter of simply offering a few words: the authority must consider the case, learn from it and resolve to do better next time.

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

I do not want to detain the Committee, and will make only a couple of further points. First, the issue dealt with by amendment No. 19 should be set in the context of prevailing assumptions about the relationship between parents and children and LEAs. Among many parents and young people with special educational needs and, one might say, people with disabilities in general, there is a feeling that those in authority can sometimes be arrogant. Such feelings are often exacerbated by people's sense of vulnerability, and, perhaps, by their earlier life experiences. My repeated experience of such matters suggests that parents frequently feel that the authorities do not take sufficient account of their concerns. They do not show sufficient humility. The apology that the amendment stipulates is designed to allow local authorities in such circumstances to be a little more humble—to say that they got it wrong.

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 might just correct a small mistake in terminology in my hon. Friend's powerful speech, it is a matter not of allowing but of requiring authorities to do something about it.

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

Indeed. I was being excessively polite, as I am wont to be. My hon. Friend is right. The current position is variable, as I would be the first to acknowledge. However, as an apology has frequently not been offered voluntarily, it is vital to introduce an element of obligation. Frequently, local authorities have not shown the requisite humanity and have not made it clear that they sometimes get things wrong. That is why we wish to strengthen the Bill.

I do not want to open up a hornet's nest, but the amendment would raise the issue of compensation for discrimination, which my hon. Friend has hinted at. That matter was debated at considerable length in the other place, not least by Lord Ashley, who discussed the tribunal's power, when it finds in favour of the parents, to insist that people are properly compensated. As we are probing the Government, it would be useful if the Minister would refer to the issue of an apology, which was debated at some length. I put it no more strongly than that.

On amendment No. 20, I want to add one point to what my hon. Friend has said. We might find, as matters proceed—the Minister was right to say that these are early days—that particular problems arise in certain areas and particular local authorities, and we may find that cases are concentrated in one part of the country.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment) 11:15 am, 3rd April 2001

May I assist my hon. Friend by saying that, in conducting its inspections, Ofsted might also find that there is some systematic flaw in provision?

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

Precisely. My hon. Friend anticipates my conclusion. If there is a concentration of cases in one part of the country, that might be indicative of an endemic or, as my hon. Friend describes it, a systematic problem. That is why it would be inappropriate not to include in the Bill provision for local authorities to learn from mistakes by examining specific examples or a collection of examples. If there is a concentration of cases or a repeated theme, that may indicate that there is a flaw. Amendment No. 20 simply suggests, arguing from the specific to the general, that it would be wrong if the Bill did not cover that possibility, allow local authorities to consider how systems and procedures work, and offer them an opportunity to iron out and amend their practices.

Once we have had a chance to see how the legislation beds down, get a feel for the number of cases, where they are, and what cases typically arise, we could learn from that experience and incorporate it in good practice. The amendment is constructive and persuasive—I suppose that I would say that. It would help local authorities and give extra protection to people who go to a tribunal, win their case and say, ``Let's hope that this does not happen to anyone else. We have won our case, but we do not want anyone else in a month, a year or five years' time to face the same challenges and go through the same process.'' If the amendment is rejected, intransigent local authorities may not learn from mistakes, and we know from experience that that has happened. Such situations will be testing for the parents and children involved. They would take comfort from an apology and from knowing that their case was a landmark. People are not entirely selfish in such matters; they hope that others will benefit from the difficult circumstances that they have had to endure. On that basis, I urge the Committee to support 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)

Before the Minister responds, I want to raise a related issue regarding redress. The explanatory note helpfully says that the expanded tribunal will be able to set rigorous deadlines when directing action by schools and LEAs. If those deadlines are not met, the parent can ask the Secretary of State to make a direction to require compliance. I understand that, and it is helpful. However, the issue is not about deadlines, but about the substance of the response made by the school or the LEA. The argument is not about whether something has been done by the deadline, but whether it is consistent with the order made by the tribunal. Perhaps the action taken made a monkey of the tribunal, or was not in the spirit of its findings, which led to a complaint. I am not sure how often that has happened, or how many cases have been taken as far as the Secretary of State, but it would be useful to have the Minister's perspective on that more general issue.

Photo of Andrew George Andrew George Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Work and Pensions)

There has been an important debate in the other place on compensation. I am pleased that no amendments have attempted to delete lines 30 and 31 of page 17, which make up proposed new section 281(4)(b) of the Disability Discrimination Act 1995. It has become clear from the debate that, although financial compensation could be attractive, removal of the proposed new section might have the negative effect of creating a quasi-legal process and altering the motivation behind claims for discrimination. The other place considered including financial compensation, but on reflection it is right that it should not be included.

It is not appropriate for compensation to be related to retribution. The outcome of the process should be a learning experience for all. I hope that the Minister will clarify and amplify the Government's thinking on educational remedy. I am concerned, as are others, that an aspect of educational remedy may be additional teaching, which may be seen in the school as a punishment for failures in the pupil's past. These matters should be treated with sensitivity, especially when discrimination can be proven to have occurred over a long period. In such cases, a long period of educational remedy will be needed.

I want the Minister to elaborate on the explanatory notes, so that we are fully aware of what will and will not be included in the educational remedy. To what extent will the school and LEA be responsible for fulfilling the obligations?

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

I was grateful for that debate, as it gave us the chance to air some issues that had already been heard in the other place, but deserved another brief airing. The argument made by the hon. Member for South Holland and The Deepings was constructive and persuasive, but I hope that he agrees that provision for what he desires is already in the legislation, so the amendment is not necessary.

All three Opposition Members who spoke mentioned financial compensation. The Under-Secretary of State for Education and Employment, my hon. Friend the Member for Redditch (Jacqui Smith), and I have thought about the issue long and hard. However we played it, we were bound to end up with the possibility of disability discrimination issues being dealt with differently from issues of special educational need or gender and sex discrimination. In either case, that would have created a conflict. There was no way to square that circle. One of the ambitions had to be met, and that would inevitably lead to a contradiction with other legislation.

In the end, we decided to ensure that there must be an educational remedy. Therefore, we had to take a coherent approach to education legislation, and to provide for the rights of children under special educational needs provision when framing the disability discrimination provision and dealing with the compensation issue. I agree with the remarks of the hon. Member for St. Ives (Mr. George). The important consideration, which underpinned our approach, was making the child's learning and development central to our action. The educational remedy is therefore the most appropriate.

We engaged in extensive discussions, not only with the all-party group on disablement, but with a range of interest groups. I was persuaded—as was the Under-Secretary, my hon. Friend the Member for Redditch—by my dealings with those closest to the issue, such as the Council for Disabled Children and other members of the national advisory group on special educational needs. I think that, on balance, they agreed with us at the end of the process. None of us found the decision easy, but I think that we made the right one.

The arguments that affected our decision included the fact that if financial compensation were provided for in the Bill, the entire focus of the tribunal system would shift towards that and away from educational remedies. That would disbenefit the child in relation to educational opportunity and experience. The informal and friendly atmosphere that is the strength of the special educational needs tribunal would be lost if we switched to financial compensation. We would end up with a culture that was more strongly litigious, more formal and perhaps more adversarial and acrimonious. Changing the nature of the tribunal might put off from pursuing their case parents who felt that their child had suffered discrimination on grounds of disability or special educational need. The greater the informality, the greater the likelihood of less confident parents feeling able to participate in the tribunal.

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 disagree with the Minister. I think that she is essentially warning off any suggestion that the tribunal should provide the opportunity of an outing for gold-diggers. That would be wrong.

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

Gold-diggers include lawyers, and although I am married to one I am as anxious as others to keep them out of this arena in the interests of children and their education.

If the focus were on the financial contribution, the root cause of the discrimination may not be tackled. There may be a tendency to think that if a payment of £100, £200 or £2,000 is made, there is no need to bother to tackle the institutional issue that has led to one instance of discrimination and could lead to others. That was another strong argument that informed our consideration of the matter, and led to our decision. That does not mean that there will not be financial costs to schools and LEAs from involvement in tribunals and funding educational remedies. Remedies cost money. We would prefer money to be spent on educational remedies, rather than on financial compensation for individuals.

Photo of John Hayes John Hayes Shadow Minister (Education) (Schools) 11:30 am, 3rd April 2001

I understand that argument, which is a good one. However, it was anticipated to some degree by Lord Ashley, in the other place. He talked about the tribunal being more like a small claims court than a gold-diggers' affair—perhaps we are talking about bronze-diggers. His said that we could ensure that by limiting the amount of money involved by regulation. I do not necessarily agree with that, but I think that it needs re-airing or re-amplifying, as the Minister described it.

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

I read that argument, too. However, my view is that when financial compensation is involved, a more litigious atmosphere is likely. Lawyers can currently participate in SEN tribunals; I believe that that happens in one in 20 such tribunals. In our judgment, there would be a tendency for that to increase. In a few cases, an educational remedy will be difficult. However, even in those cases some such remedy will be possible.

I should like to give the Committee some examples by way of illustration. It has been argued that once a child has been prevented from going on a school trip, nothing can be done. However, the child could be included in the trip of another year group by way of educational remedy. If a child were prevented from undertaking a public examination because insufficient adjustments had been made to enable that child to do so in an appropriate manner, that could be remedied. Although some time would be lost, the child could be given the opportunity to sit the examination once the appropriate adjustments had been made. If an act of discrimination occurs, it is difficult to rectify it 100 per cent. However, in most cases it is not impossible to find some educational remedy.

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

Is not the difficulty with cases in which damage has been caused before the tribunal has considered the case? There might have been two or three years of inappropriate provision arising from the dereliction of either a school or an LEA. No money can put that right, and no educational provision can rescue that situation, although it might ameliorate it. What is required is an apology and a determination—a real determination, not just lip service—to do better by children when the circumstance occurs again.

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

That allows me neatly to move on to my next point on the two amendments. Anything that we do in this area deals with the future, not the past, so there will always be a sense of it not being the most perfect outcome for the child. We are trying to identify ever earlier both special needs and disability, and I hope that we are improving our ability to respond to a child's future needs more quickly than we have done in the past.

I agree entirely that what relatives often want is for people to say that they are sorry. Perhaps it is a good lesson for us as Members of Parliament

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

I dare not pursue that argument, as I think I would find more instances among Conservative Members--particularly from their time in government--than I would among my hon. Friends. However, we all need to learn the lesson that the arrogance of power and position should not prevent us from recognising when things have gone wrong and from saying that we are sorry. I hope that I can convince Opposition Members that the Bill provides for that. We have enshrined in clause 18 —proposed new section 28I(3)(b) of the 1995 Act—the provision that on a successful claim for disability discrimination, the tribunal can make any order that it considers reasonable. The Bill also provides that, in deciding on the type of order that it will make, the tribunal may grant a remedy that will negate or reduce the adverse effect of discrimination. I hope that I have reassured Opposition Members that the Bill gives the tribunal wide powers to order an appropriate education remedy.

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

If the local authority or the school were to regard a tribunal order as unreasonable or impracticable, what redress would that authority or body have? Could it challenge the order? Would it have to go to the High Court?

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

The tribunal order must be specific. The school will have to take action. If not, the Secretary of State will direct it to do so, as he has done in the past. Of course, the school or the LEA would be able to appeal to the High Court if it were felt that the order was inappropriate or wrong.

In considering specific cases, the tribunal has the power to order a school or an authority to change its policy—for example, on bullying. If a school has been found to discriminate against a child over bullying, the tribunal can instruct the school to change not only its behaviour towards that child but its wider policy on bullying. The tribunal can also order the discriminator to apologise to the child. Amendment No. 19, which inserts an express power to that effect, is therefore unnecessary.

Amendment No. 20 raises the question of whether the tribunal should have the power to invite LEAs and schools to reconsider their procedures for dealing with matters of wider application that may emerge during the hearing of a case. We resist the amendment on a number of grounds. First, it does not place a duty on a school or LEA to comply. Secondly, we do not want the tribunal to be diverted from focusing on the needs and circumstances of the child. Thirdly, nothing in the Bill prevents the tribunal from recording the wider issues in its written decision, but it is not appropriate to give the tribunal that specific power. However, several other mechanisms are in place to ensure that the wider implications of a case are taken on board.

First, schools and LEAs have an anticipatory duty to ensure that their policies and practices do not discriminate against children. It would be a rather short-sighted school or LEA that did not have proper regard to that when considering the wider implications of a case that was being considered by a tribunal. If they failed to do so, the LEA or school would be open to further successful claims of discrimination.

Secondly, if the school or LEA refuse to have regard to the wider implications of a specific case, the DRC has the power to investigate the LEA or school and to seek an injunction—or, in Scotland, an interdict. The DRC can seek an injunction against an education provider that persistently discriminates, if it believes that without it the provider would continue to commit further unlawful acts. That would apply also to a provider against whom a non-discrimination notice had become final in the previous five years. The Secretary of State has the power to intervene, as alluded to by the hon. Member for Daventry; he has done so in the past, although not frequently.

The Bill imposes an express duty on the school and the LEA to implement their plans and strategies on disability and discrimination against children in their schools. There are other ways of monitoring whether schools are complying with the legislation. For example, the schools access initiative will be vetted, and if it is found that schools are not complying with their duties, the Secretary of State will be able to deal with it.

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

One of the by-products of the recent study on the schools access initiative was the discovery that it was only partially taken up, according to whether schools or LEAs were aware of it. Will the Minister ensure that, to borrow a phrase, it is rolled out across the country and that it benefits all local authorities that need it?

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

In our funding plans, we have for the first time given local authorities three years' certainty. That has been widely welcomed, as has the increase in resources that we have made available to LEAs. Under the Bill, LEAs will have to submit their school access initiative plans, and officials will be able to use those reports to trigger a call-in if they are concerned that the strategy is not being implemented. The hon. Gentleman may like to know that all LEAs have taken advantage of the school access initiative resources made available for 2001-02.

We have other mechanisms to ensure that schools comply with the legislation. Asset management plans will be inspected by departmental officials. Amendments made in the other place will allow issues of disability to be inspected by Ofsted. Parents and others with an interest will be able to inspect the LEA's or the school's strategy, which will form another check. If parents are unhappy with how a school or an LEA is carrying out its duties, they will be able to complain to the Secretary of State or to the National Assembly of Wales, and such complaints will be investigated.

We have put in place a multi-layer, multi-agency set of mechanisms to ensure that lessons from individual tribunal cases will be applied in the wider context. They will put additional pressure on LEAs and schools to comply with the legislation. I hope that I have reassured Opposition Members, and that they will feel able to 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)

I thank the Minister. In summary, her answer was good but not good enough. The Opposition attach great importance to the two elements embodied in the amendments. The hon. Lady has probably given sufficient answer to amendment No. 19, and I am minded to withdraw it in due course, but she gave a long, opaque answer to amendment No. 20, in which she deployed a complex set of remedies. I am not as happy with that answer, partly because, if the remedies are real, I do not see why they should not be included in the Bill.

As we have shown, we are concerned not only about redress for individual children, but about the more difficult cases in which individual LEAs set their faces against making systematic improvements in the sensitivity of their provision, and are happy to take the occasional reverse by the tribunal on the chin and go on to the next act of discrimination or unsatisfactory provision.

For that reason, we think that the Bill should include a provision to address that problem. It would provide an invitation that could ultimately be cashed in through the intervention of the Secretary of State, if no one else, on the ground of unreasonable behaviour. It would not only apply to individual LEAs that the tribunal had found delinquent in individual cases, but would require other LEAs to pick up on acceptable practice. That would follow the line taken when concerns about institutional failures in the police and other public services have been transmitted through the system.

It is important to make the tribunal mean something by intervening to change provision over the years. We are also concerned that the remedies are opaque, buried and not easily available to the average lay person encountering the tribunal for the first time. Therefore, I shall withdraw amendment No. 19, but am minded to test the Committee's opinion on amendment No. 20.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 20, in page 17, line 29, after `relates;', insert—

`(aa)includes power to invite local education authorities and education providers to re-examine their procedures and provisions for dealing with matters of wider application raised by the resolution of the particular case;'.—[Mr. Boswell.]

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 10.

Division number 3 Adults Abused in Childhood — Clause 18 - Jurisdiction and powers of the tribunal

Aye: 6 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Clause 18 ordered to stand part of the Bill.