Clause 133

Education and Skills Bill – in a Public Bill Committee at 3:15 pm on 28 February 2008.

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Power of governing body: educational provision for improving behaviour

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

Photo of Gordon Marsden Gordon Marsden Labour, Blackpool South 3:30, 28 February 2008

I am grateful for your guidance, Mr. Bayley, and apologise if I caused any unintended confusion. I very much wanted to speak on this clause and associate myself with concerns that have been expressed by the Special Educational Consortium and the National Autistic Society about the clause as currently drafted .

We should at least consider whether the famous parliamentary law of unintended consequences might at some stage come into practice with this provision. The clause will formalise the practice whereby school governing bodies direct students, including students with special educational needs, to attend alternative forms of provision to improve behaviour. Who, one might say, could be against that process? But the Special Educational Consortium has real concerns that formalising that practice will lead to students being removed from schools without proper consideration of the impact of their special educational needs on the behaviour concerned.

Obviously, the SEC, like myself, welcomed the proposal to extend the requirement to stay in education or training to the age of 18—not least because of the potential benefits this will bring to young people with learning difficulties and special educational needs. But the plain fact is that statistics show that many disabled students and those with special educational needs are already out of school by the age of 16 as a result of exclusion, both formal and informal. Many more pupils in that area have poor experiences of education.  

The Liberal Democrat spokesman on this matter and I were colleagues on the former Education and Skills Select Committee, and we know from its inquiries on SEN and bullying how this can be a particular issue. The statistics are frightening. There are eight times as many exclusions of pupils with special educational needs as of pupils without them, so one has to ask to what extent do official exclusions create a problem?

There is very clear guidance set by the Department that such exclusions are illegal. The guidance also recommends that, where all else fails, the school should seek a statutory assessment or, for a pupil with a statement, an early annual review. Again, the fact is that the high level of exclusions of pupils with SEN suggests that those recommendations are not being followed, so the SEC wants more effort and more measures to keep disabled pupils and those with SEN in school, with a better experience of school.

An important factor to take on board here, I am sorry to say, is the very mixed reputation of some of the pupil referral units to which children with SEN go. I make no comment on any particular ones, or any particular areas, but, nevertheless, the mere fact that children with SEN can be referred to pupil referral units in company with young people who are there for very different reasons, in very troubled circumstances, can also cause a problem.

Those concerns are shared by the National Autistic Society, which has also written to me. I declare an interest, because the issue of autism, particularly Asperger’s syndrome, is one that I had to deal with several times in this respect in my own constituency. It says that the number of children with autism who have been excluded, and excluded repeatedly, is worrying.

It is worth saying again that the school environment throws up a range of challenges for pupils with autism, including those with Asperger’s syndrome, particularly at secondary level. The NAS rightly reminds us that environmental triggers and disruption to routine can lead to high anxiety in terms of peer relationship, bullying and low self-esteem. The classic pattern for children with autism who exhibit such challenging behaviour is that stress built up from low-level bullying can often trigger a sudden disproportionate response. That is the so-called row in the dinner queue syndrome, to which Lord Adonis and others have referred.

The NAS asks for appropriate safeguards to ensure that any underlying factors that contribute to the behaviour are considered before a child is removed from the school premises. The NAS and the SEC are concerned that one of the unintended consequences of the clause is that the Bill does not make it clear whether removing the pupil from the school premises would be regarded as an exclusion or disciplinary penalty, as defined by the Education and Inspections Act 2006, in which case safeguards would apply.

Photo of Oliver Heald Oliver Heald Conservative, North East Hertfordshire

When the hon. Gentleman was making his points about pupil referral units, I was not entirely clear whether he was making a distinction between different kinds of special needs. I was once a governor of a special school where the youngsters were EBD—  emotionally and behaviourally disturbed—and of course, their behaviour was difficult. I have also been a governor of a school where the pupils had MLD—mild learning difficulties—and they were quite different cohorts. Is he distinguishing between the two when he talks about special needs?

Photo of Gordon Marsden Gordon Marsden Labour, Blackpool South

The hon. Gentleman is right to point out that there are a range of differences, and I observe those distinctions. The point that I was endeavouring to make is that it can be catastrophic if someone with a severe autistic disability such as Asperger’s is referred to a unit that other young people attend for totally different reasons. That is one of the factors that should be taken into account.

I understand that there is a suggestion that in some circumstances there would be a review mechanism, through regulations made under the Bill, after a period of time. The problem with that is that, especially for the sort of young people whom I am talking about, if they are referred inappropriately to such establishments, the effects on that young person could be catastrophic, particularly if they have to remain there for some three or four weeks before it is established that that is an inappropriate place for them to be. Therefore, if the Government intend to continue with clause 133 in its current form, the NAS and SEC would at least like consideration to be given to a proactive statement in that respect, rather than a reactive one some 20 or 30 days later. It is not a question of challenging the motives and the intentions, but of considering the possibility of the law of unintended consequences. I urge Ministers and their officials to reflect on the real concerns that have been expressed by the organisations concerned, which I am articulating today.

Photo of John Hayes John Hayes Shadow Minister (14-19 Reform and Apprenticeships)

It is a reasonable test of a civilised society that we should judge how it deals with its most vulnerable citizens. Children with special educational needs are among the most vulnerable. The proposals and briefings of the NAS and the SEC have done the Committee a great service. I pay tribute to them and their work. I am grateful for the chance to follow the hon. Member for Blackpool, South who has also highlighted their comments.

It seems to me that the issues are these. The clause makes some sensible provisions about exclusion, but the NAS and SEC wish for the particular circumstances that affect so many children with special educational needs, particularly children with learning difficulties, should be taken into account in the application of those provisions. Understandably, they suggest that we strike out the clause. I am not sure that that is the right solution because it would get rid of what are sensible provisions for most purposes and in most circumstances. In responding, the Minister needs to have a convincing answer as to how children with special educational needs are to be dealt with, particularly those children whose cases the NAS and SEC have highlighted.

Photo of Angela Watkinson Angela Watkinson Opposition Whip (Commons)

Does my hon. Friend agree that subsection (1) of proposed new section 29A of the Education Act 2002 requires any registered pupil to attend any place outside the school premises for educational provisions to improve their behaviour? Is  not the ideal situation to have a separate place within the school in the pastoral care department? There a child with special needs is not in a position to disrupt the education of their peers, but has a place within familiar surrounds, within the school building where they can have correctional improvements and treatment.

Photo of John Hayes John Hayes Shadow Minister (14-19 Reform and Apprenticeships)

My hon. Friend may have seen that kind of provision working in her constituency, as I have in mine. She is right that there are circumstances where it is much better to isolate the child but not outside the school premises, with all that that means. That may be particularly true with the kind of children that the hon. Member for Blackpool, South spoke of and that the organisations that I mentioned champion.

Photo of Oliver Heald Oliver Heald Conservative, North East Hertfordshire

Does my hon. Friend think that another problem is that there has been a cutback in special schools and that for some pupils with EBD a special school is a good option? It would be wrong for a child of that sort to end up in a pupil referral unit, when they actually need specialist support.

Photo of John Hayes John Hayes Shadow Minister (14-19 Reform and Apprenticeships)

I intend to speak about EBD at some length. My hon. Friend is right. The biggest growth in statements is in EBD. The number of children with emotional and behavioural difficulties seems to grow inexorably. Almost by definition, there are discipline issues associated with those children; they are challenging in the classroom and difficult to teach. It is essential that we get the regime right within mainstream schools, where we have children with those challenges, and that we are clear about when it is better for those children to be educated elsewhere.

There are other groups of children as well as those with emotional and behavioural difficulties that fall into that category. I am mindful of children and young people with acquired brain injury, who display some of the characteristics typical of children and adults with autism, like the inability to concentrate, inappropriate behaviour and difficulty forming relationships. Those are features of people with acquired brain injury, which sometimes make it difficult for them to interact with people supervising them and with their peers.

The hon. Member for Blackpool, South mentioned this point, but it is worth amplifying. The National Autistic Society emphasises that autistic children are frequently bullied. That bullying can lead to a disproportionate reaction on their part. That is what leads to the exclusion or disciplinary action. Another feature of autistic children is that they are often encouraged to behave in ways—sometimes seeking peer group approval—that get them into trouble and identify them in a way that is unhelpful and often unfair. The provision affects all kinds of groups of children who might find themselves in circumstances that we would not, as a Committee, judge to be reasonable. This part of the Bill must at least be applied with sensitivity in that regard.

There are five other things that I would like to say about this issue. First, the issue is largely about the training and preparation of teachers. We said earlier that many teachers find themselves ill equipped to deal  with the challenges presented by special needs children in mainstream schools. A reason to strike the clause out, were it not for its other virtues, is that sometimes exclusion, removal or discipline is the easiest reaction for a teacher who is not equipped to deal with the challenges presented by an autistic child, a child with an acquired brain injury or a child with another kind of learning difficulty, who is displaying inappropriate behaviour, failing to interact with their peers or reacting to authority in an unacceptable way simply out of frustration. It is critical that we focus on the preparation of our schools, head teachers and teachers and ensure that those who are responsible for special needs policy in schools understand the policy behind this part of the Bill.

Secondly, there is an issue about resources. By that, I mean not money, but the physical resources alluded to by my hon. Friend the Member for Upminster when she talked about a separate area within a school where people can be taken to be educated separately for a while. Much of this issue is about not going down an avenue that leads to a cul-de-sac from which we cannot escape. Once one has taken action that leads to a child being taken out of school and possibly formally excluded, it is hard to draw back. A process begins that has a degree of self-fulfilment about it. It could end up at a destination that was not intended initially. The capacity to take a decision that is not so definitive, but which allows a child to be dealt with separately from the remainder of the school for a short period will often be sufficient to satisfy that child’s needs, to protect the interests of their peers and to allow the teachers to adopt the right strategies.

Photo of Hugh Bayley Hugh Bayley NATO Parliamentary Assembly UK Delegation 3:45, 28 February 2008

Order. The hon. Gentleman is speaking in order, but I remind him that we have just over 10 minutes to go and that other hon. Members wish to speak in this debate. Whether we will get to further debates is another matter, but he might like to abbreviate his remarks if he can.

Photo of John Hayes John Hayes Shadow Minister (14-19 Reform and Apprenticeships)

I shall finish my three remaining points, leaving plenty of time for other hon. Members to contribute to the debate.

My third point is that it is very important that local authorities and others have a clearly defined strategy on this matter. My experience of local government as shadow Schools Minister, before I was elevated to higher and further education, was that local authority practice in these terms is variable. Some local authorities have very good, well-established policies, while others are—I am trying to choose my words kindly and carefully—considerably less thought through about these matters.

My fourth point is that it is very important that agencies such as the National Autistic Society the charities that have expertise in this field are properly involved in policy formation.

Finally, I would simply say that some of this debate arises from the wholesale integration into mainstream education of children who should not be there. Although the Government have taken, albeit faltering and grudging, steps down the road that we have wanted them to take from the outset, I urge the Government once again to share the Opposition’s faith, passion and  belief in special schools, which are very often the best place to educate the sort of children of whom we are speaking. They are secure environments, with high levels of expertise, where those children most frequently find the opportunity to fulfil their potential.

I strongly endorse the sentiments expressed by the hon. Member for Blackpool, South and the briefings we have been given by some excellent agencies. I hope the Minister, who must have this clause, will at least mitigate its effects in the ways that we have described.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

I shall try to gain the peer group approval that the hon. Gentleman spoke about by being fairly brief and not eating into the last 10 minutes that we have for the mere 40 amendments and new clauses ahead of us.

I add our support for the comments made by the hon. Member for Blackpool, South; we share his concerns about the clause. We hope that the Minister will respond positively. Could he also let us know, if the clause is not to be deleted or amended, what responsibilities the schools will have to notify local authorities of any action they take under the clause?

Photo of Oliver Heald Oliver Heald Conservative, North East Hertfordshire

I have two points to make. Woolgrove school in my constituency is a special school that has an autism unit. The special care and help that its staff are able to give young people with such problems is fantastic. I hope that, rather than go down the route of pupil referral units and similar temporary expedients, the Minister will give due prominence in his policy making to having more units of that sort. One of the problems is that there is not enough specialist provision for autism and the wide spectrum it covers.

My other point is that I used to be the governor of a very good special school for EBD youngsters. It strikes me as very sad that that school is closed. It was an Inner London education authority school, and one of the good things about ILEA was that it had some extremely good special schools provision. I hope that the Minister and the Government have learnt that it is a mistake to close special schools, which have such fantastic staff and the ability to help some of our most vulnerable children.

Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

A school governing body already has the power under section 29(3) of the Education Act 2002 to direct a pupil off-site for education or training. That was intended to enable schools to send pupils to other schools or further education colleges to take academic or vocational subjects that their own school could not provide, but the power is also applied for a number of other purposes that may go beyond that stated in the 2002 Act, and we should tidy that up.

We know that some schools use the power for the purpose of sending challenging pupils to various forms of alternative provision without resorting to the more punitive exclusion legislation. I have listened very carefully and will reflect on what my hon. Friend the Member for Blackpool, South has said. Reliance on section 29(3) of the 2002 Act, where the underlying reason for transfer is  behaviour related rather than instruction or training related, is unsatisfactory. We cannot go further in guidance on the existing legislation.

We want legal clarity for school partnerships, such as the excellent Chesil Educational Partnership in my own constituency, to improve behaviour and tackle persistent absence. Partnerships must be able to transfer a challenging pupil between schools or from schools or partnership-managed alternative provision without the parent’s consent, particularly when the parent is a major part of the problem. The clause would allow governing bodies to do that and remain clearly within the law.

Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

Let me make some progress. If I have time to give way in the next five minutes, I shall certainly do so.

On the arguments that were made, quite properly, about pupils with special educational needs and disabilities, the new power does not in any way relieve the governing body of its duty to use its best endeavours to ensure that the special educational provision is made for pupils with special educational needs; neither does it relieve the local authority of its duties to arrange special educational provision specified in children’s statements of SEN, if they have a statement. Guidance on the new power will send strong messages about the extra consideration needed for pupils with special educational needs.

I am happy to release the indicative regulations to the Committee before the report. If my hon. Friend the Member for Blackpool, South, subsequent to my publishing those indicative regulations, would like to meet me to discuss them and bring with him representatives of the NAS and the SEC, I would be happy to have such a meeting to make sure that we get the regulations right. I could then respond to all the other points that have been made. I could respond to them in detail now but, given the time, it would be better if I did not do so.

Photo of Oliver Heald Oliver Heald Conservative, North East Hertfordshire

To pick up on the point made by the hon. Member for Blackpool, South, if the child to be taken out of a mainstream school and put somewhere else is autistic, does the Minister acknowledge that it is unacceptable for that pupil to be put into a special referral unit that has no specialist knowledge of how to look after such a child? The child should always be put into a specialist place.

Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

As I have said, the governing body and the local education authority have a duty to arrange educational provision that is appropriate for the child’s needs.

Question put and agreed to.

Clause 133 ordered to stand part of the Bill.

Clauses 134 to 142 ordered to stand part of the Bill.