Clause 38 - Relationship with other parts of the 1995 Act

Special Educational Needs and Disability Bill [Lords] – in a Public Bill Committee at 6:15 pm on 3rd April 2001.

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Photo of Andrew George Andrew George Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Work and Pensions) 6:15 pm, 3rd April 2001

I beg to move amendment No. 25, in page 33, line 9, at end insert—

`(5A) In section 19(3), at the end insert—

``(i)the provision of examinations in respect of education and training.''.'.

The hon. Member for Daventry provided a prelude to the amendment by referring to it earlier. As this sitting has been long and it seems likely that we shall have another, I shall not detain the Committee unnecessarily. I shall humour the hon. Member for South Holland and The Deepings, although not as entertainingly or articulately as the hon. Member for Daventry did.

The amendment parallels a Greek tragedy. The Antigone behind that rather sad tale is suffering as a result of the clauses from a rather harsh, Creon-type interpretation of the Bill. The amendment would ensure that examinations undertaken as part of education could not place unnecessary barriers in the way of disabled candidates. A major anomaly exists between examinations used as part of training and those used following a course of education. Examining and awarding bodies are exempted from the DDA when, and only when, their examinations are used at the end of a course of education. When an examination is used for the assessment of a course of training, it is not exempted from that Act but must comply with part III, which covers the provision of goods and services. In some cases, that means that the same examination may be covered by the 1995 Act and may sometimes be exempt, depending on whether the learning that preceded it was training or education.

The national vocational qualifications and the Scottish vocational qualifications are especially affected by that anomaly, which could lead to an inequality between learners in different groups and make a mockery of the Bill. What is the point of an institution, whether it is a school or a college, being prohibited from discriminating against disabled pupils and students when the examination boards that provide examinations can discriminate with impunity? How can colleges be expected to ensure that disabled students receive the reasonable adjustments that they require when the examining board, which is the final arbiter of whether an adjustment to an exam is allowable, is not subject to the same rigorous requirements not to discriminate?

Recent research by the Royal National Institute for the Blind demonstrates that examinations pose particular difficulties for blind and partially sighted learners, typically because they cannot rely on receiving examination papers in the correct format and on time. The research shows that one in four of the pupils questioned did not always get test or answer papers in the right format. One in five said that test or exam papers had not always arrived on time. One third of the university students had received late exam papers on at least one occasion, as had at least 11 per cent. of further education college students.

The problem sometimes lies with the school or college for failing to notify examination boards of students' needs or make adjustments. At other times, however, the examination boards are at fault for failing to make proper arrangements. Examining boards, in addition to agreeing to candidates having exam papers in their preferred format, arranging transcription and ensuring that the papers are sent out on time, need to agree a host of other reasonable adjustments in advance, if blind and partially sighted candidates are not to face substantial disadvantage in the examination process. Those adjustments include allowing candidates extra time because it takes longer to read large print or Braille; arranging for candidates to present their answers in a preferred format, whether it is hand-writing, word processing, dictation or in Braille; and agreeing that candidates can do the examination in a separate room with a separate invigilator if need be.

Most blind and partially sighted students are given extra time for exams and other forms of reasonable adjustments, but there are too many who do not. The Royal National Institute for the Blind tells me that one in 10 of university and two in 10 of further education students told the organisation that they were not given enough extra time.

The main reason for examination boards failing to meet the needs of blind and partially sighted students in a uniform fashion is that the guidance that they receive is not strong enough and no clear actionable duty is placed upon them. The Qualifications and Curriculum Authority, for example, has bemoaned its inability to force standards on examining boards. Any failure on the part of examining boards could have a major impact on the future of educational and career prospects of blind, partially sighted and other disabled learners. At present, there is not a sufficiently powerful incentive for them to get the process right or to provide effective redress for a disabled learner if things go wrong. The obvious solution is to bring examining bodies within the scope of the DDA so that they are all covered by part III, whether they provide examinations for learners in training or in education.

I hope that the Minister will respond to that technical interpretation which, if I am correct, could provide a get-out and result in less favourable treatment for disabled students who are welcomed to courses but find that they are discriminated against when it comes to examinations.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment) 6:30 pm, 3rd April 2001

The hon. Member for St. Ives has performed a service to the Committee in raising the matter. We all want the fairest possible arrangements in examinations so that any functional difficulties encountered by disabled people, let alone anomalies between various sectors, are redressed. There is also concern about equal opportunities in certain rigorous examinations in universities and the higher education sector—for example, whether women have sufficient stamina when they must cope with menstruation and so on to achieve well in examinations.

At the opposite end from the examining bodies, I have been in correspondence with the Qualifications and Curriculum Authority on statutory standard assessment tests in schools concerning a child with a severe sight problem. The matter was drawn to my attention by the special needs co-ordinator in the school and I then corresponded at the top of QCA and eventually got its ruling on the time provided and the provision of computer alternatives reversed. I was pleased about that because I was told that it was a test.

In another context, the awarding bodies want to be fair and they set out to be fair. That is not window dressing and they are anxious to adjust their procedures to secure fairness. I believe that we will eventually secure that, but there is a problem, which needs attention, and I look forward to the Minister's response.

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

I want to add briefly to the comments made by my hon. Friends the Members for St. Ives and for Daventry.

There is an issue concerning pressure on people with disabilities who want to pursue further or higher education. We have discussed access and the importance of ensuring that the admissions process does not discriminate against disabled people. However, if at the end of a course of study students are aware that they will face an examination or test that is more onerous for them than for others because they are particularly disadvantaged, they may not embark on the course in the first place. The examination process at the end of a course of study could be a disincentive that may contradict everything else that we have tried to achieve in ensuring that people have the confidence actively to pursue higher education and further education courses.

I have some sympathy with the matter that the hon. Member for St. Ives brought to the Committee's attention. We should be consistent and coherent from the beginning to the end of the process to ensure that people with a range of disabilities are not disadvantaged.

In introducing the topic, my hon. Friend the Member for Daventry has done us a service of Greek proportions—I mean heroic, not tragic. I do not wish to detain the Committee, and emulate Pericles in the process, so I will leave the matter there, and ask for the Minister's response.

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

I never passed an examination in Greek, so I feel at a slight disadvantage. I assure the hon. Member for Daventry that that was not because I was a woman, bogged down with the difficulties of menstruation.

The hon. Member for St. Ives has rightly identified the area as complex. I agree with the clear objective that Committee members wish to achieve. Examinations are an important part of an education course and students with disabilities must be able to access assessment, while the standards of examinations are maintained. I shall return to that.

On the legal position, as the hon. Gentleman recognised, awarding bodies will be covered by part III of the DDA when they are providing a service to the public. Whether they are doing so will be decided on a case-by-case basis. The hon. Member for St. Ives highlighted the distinction between education and training. That distinction exists under 1996 regulations that we will revoke when we implement the Bill. The issue is not straightforward, as the disability rights taskforce recognised.

I have made it clear that bodies that can be defined as qualifying bodies are covered by part III of the DDA when they provide a service to the public. However, they are covered under the legislation's employment provisions relating to sex discrimination and race discrimination, rather than under its education provisions. The distinction between employment and education is important because the Bill deals with the DDA's education provisions. As I mentioned earlier, the disability rights taskforce included its recommendation on qualifying bodies in its employment, not its education, chapter. The implications of that need further consideration and, in due course, consultation, but the taskforce's approach to the qualifying bodies seems to reinforce our arguments.

Exams, and access to them, are important, and I will clarify where the Bill will positively affect assessment arrangements. It includes arrangements made by schools and by higher and further education colleges under the wide definitions of ``education and associated services'' and ``student services'' respectively. Part IV will cover internal and admissions examinations set by the institutions subject to the legislation. It will also cover arrangements made for pupils and students sitting externally set examinations. The Bill will impose a duty on institutions in which such examinations take place to ensure that disabled people are not treated less favourably. The institutions will also be subject to the reasonable adjustments duty, which means that they might have to make adjustments, for example, to seating, lighting or timetabling to meet the needs of disabled pupils and students.

I have already covered part of the issue, raised by the hon. Gentleman, of the examination body.

As I suggested, the examination body may take responsibility for the way in which papers are produced and for arrangements for accommodating candidates' special needs. Whether that is caught by part III of the DDA will depend on whether it provides a service to the public. Our objective, which is clearly stated, is to ensure that arrangements are in place to protect the assessment needs of disabled candidates, and I hope that I can reassure the Committee that those exist. For example, the regulatory authority's arrangements for accreditation of external qualifications require an awarding body to ensure that no unnecessary barriers to assessment prevent candidates from effectively demonstrating attainment. That covers special arrangements to meet particular assessment requirements caused by disability and special consideration for those with a temporary condition or illness.

The hon. Member for St. Ives highlighted concern expressed by the RNIB about the availability of examination papers and the formats in which they are produced. I am reassured by the fact that in England, Wales and Northern Ireland the joint council for general qualifications has published regulations and guidance relating to candidates with particular requirements that covers, for example, the delivery of GCSEs, GCEs, AVCEs and GNVQs. It is an excellent document, and I assure hon. Members that it contains the kinds of special arrangements that the hon. Gentleman rightly suggested might be appropriate for students with a range of disabilities. Indeed, it is an exemplar of best practice.

That document sets out arrangements that should be followed when a candidate considers that special provision was not made or was so inadequate that it did not allow him or her to demonstrate attainment. In other words, it sets out what a school or—if a school contacts it—an examination body must make available. It also sets out arrangements in case there is concern whether special provision has been made.

Of course, some awarding bodies will not have similarly rigorous arrangements. However, the QCA and Awdurdod Cymwysterau, Cwricwlwm ac Asesu Cymru in Wales have set out clear principles on the statutory regulation of external qualifications. The QCA and ACCAC published those principles in a document in summer 2000. The criteria, which are clearly set out in section C of that document, cover what awarding bodies are expected to do in relation to candidates with particular assessment requirements. Section E sets out the sort of processes that awarding bodies should have for inquiries and appeals.

By the autumn, the QCA expects to complete its programme of accrediting qualifications, which will go up to and include level 3, on the basis of those criteria. Accredited qualifications will be subject to monitoring and from 2002-03, in terms of ensuring that those things happen, we expect that only accredited qualifications that have fulfilled those criteria will be approved and eligible for public funding by LEAs and the Learning and Skills Council in England.

I accept that this is not an easy area to regulate. The number of awarding bodies, the vast range of qualifications that they offer and the nature of what they do make it difficult to achieve clarity and simplicity. However, I hope that hon. Members are reassured that the needs of disabled people in examinations are already covered. We can achieve our objective of ensuring that disabled people are not disadvantaged by virtue of their disability in obtaining access to important assessment arrangements.

Photo of Andrew George Andrew George Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Work and Pensions) 6:45 pm, 3rd April 2001

This debate has been very useful, in that my probing amendment has clarified the way in which less favourable treatment will be avoided in the examination process—a matter of particular concern to me and certain disability organisations. Like me, the hon. Member for South Holland and The Deepings will doubtless be pleased to learn that that particular tragedy can be averted. In that sense, I am reminded of the need for Creon to show some capacity for interpretation to avoid Antigone's meeting her maker.

The Minister has helped to clarify guidance from the joint council for general qualifications on the format of examination papers, the way in which employment provisions in the DDA will affect the examining bodies and the examination process, and other special arrangements. I also pleased to put my concerns on the record. As the Minister said, we must monitor progress to ensure that possible loopholes in the regulations and guidance do not lead to the meting out of less favourable treatment to disabled people. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 38 ordered to stand part of the Bill.