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Grand Committee

Volume 621: debated on Tuesday 30 January 2001

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Official Report Of The Grand Committee On The Special Educational Needs And Disability Bill

Tuesday, 30th January 2001.

The Committee met at half past three of the clock.

[The Deputy Chairman of Committees (Lord Brougham and Vaux) in the Chair.]

Details of the procedure to be followed in Grand Committee are to be found in the opening passages of Hansard on the first day of Committee on the Bill on 23rd January. I remind Members of the Committee that if there is a Division in the Chamber, the noble Lord speaking should be as brief as possible and we will adjourn for 10 minutes.

moved Amendment No. 87:

After Clause 9, insert the following new clause—


(" . In the Nursery Education and Grant-Maintained Schools Act 1996, insert the following section—

"Publication of special educational needs and disability policy.

3A.— (1) Any provider of nursery education who—

  • (a) is in receipt of grant under the arrangements under section 1; and
  • (b) is not a maintained school,
  • shall prepare and publish a special educational needs and disability policy.

    (2) Regulations may make provision—

  • (a) as to the content of the special educational needs and disability policy; and
  • (b) for the review and amendment of the policy."").
  • The noble Lord said: As I am on first at this third matinee in the Moses Room, I apologise for the soliloquy that is about to follow. I assure Members of the Committee that it is short, but it may appear greedy in the cluster of new clauses in front of us.

    Aware of the ability of the parliamentary draftsman to make silk purses out of sows' ears, my hope is that the Government will accept the principle of what I am trying to do and achieve the desired result with more elegance and economy than I and my advisers have been able to marshal. If the Minister wishes to offer reassurance rather than legislation, I shall of course listen carefully to what she has to say, though the reassurance that it will not rain is rather less reassuring than actually having an umbrella.

    I seek three things. The first is to ensure that those who receive public funds to educate three and four year olds have a published policy on special educational needs and disability. The second is to require local authorities to assist agencies funded to provide nursery education by providing them with appropriate goods and services. The third is to have plans for children with special educational needs or disabilities written into the early years development and childcare plans.

    I am well aware that early years plans and policies pay some attention to special needs and that there is for example guidance on having a special educational needs co-ordinator covering the foundation stage. However, there is not a statutory requirement to have the policy which the special educational needs co-ordinator will oversee. Nor is there a statutory requirement to put into mainstream nursery provision the sort of goods and services that will enable children who are a little different from the ordinary run of service users to be included. Finally, I have never been sure that what I shall call, for simplicity's sake, children with disabilities, stand out in the existing guidance from the wider issues of disadvantaged groups and disadvantaged areas. In the plethora of very valuable initiatives for younger children, disabilities can get lost and the educational needs and disability link become a little unclear.

    For families with a disabled child at the early years stage, life can be particularly difficult— sans diagnosis, sans prognosis, sans experience and sans the toughness that the passage of years can bring. On the other hand, whatever the eventual diagnosis and prognosis (and for some that can be pretty grim) the early years are precious. My amendments are designed to help ensure that the right support is delivered by the right people in the right way at the right time during those precious early years. I beg to move.

    Very briefly, (though not very quietly), I support the noble Lord in these amendments and certainly in their thrust. According to some of the briefing I received on this Bill, "He'll grow out of it" must be the greatest mantra for virtually all children with disabilities, particularly those of the hidden kind. If we do not have some process for looking at this, it will be, "Put him to the back of the class". Also, in very young classes, there is always the temptation to push them quietly back and say, "He's not very good at writing yet; let him play and draw for a bit". Those things do happen; they have happened in the past. The noble Lord is pointing out something that has a real historical basis. This would be one attempt to address the problem.

    I thank my friend the noble Lord, Lord Rix, for having moved this amendment. A question of fundamental importance for the Minister is whether she can confirm that LEAs will be required to provide educational support to children and their parents post-diagnosis and up to three years of age. It is a question of particular importance for children with disabilities such as deafness, whose lives can be revolutionised by the benefits of early intervention and the harnessing of new technology before and after speech and language acquisition. Moreover, those benefits will significantly increase the chances of a child's successful mainstream education. Given all that, is it not crucially important to have it confirmed on the face of the Bill? I know my noble friend will reply as helpfully as she can.

    The amendment would require early years education settings and early years development and childcare partnerships—which I will refer to from now on as partnerships—to set out their policies on plans for children with special needs or disabilities. It would also require local authorities to supply goods and services to support children with SEN in an early years setting delivering Government-funded early education.

    We do not believe the proposed changes are necessary. However, having said that, perhaps I could respond immediately to the question put by my noble friend Lord Morris of Manchester. LEAs do not have the same duties towards children under two as they have in respect of those over two. However, they have the power to make and maintain a statement for children under two if they consider it necessary, and they must carry out an assessment of a child with SEN if they need to determine the special educational provision that the child needs and the parents request an assessment.

    To a large extent, practice has shown that the most effective interventions for very young children are those that involve the input of services other than education. Such children may be "children in need" under the Children Act 1989 and, therefore, their parents can expect support, advice and appropriate provision from both social services and the health authority. The Children Act places a specific duty on local authorities to provide services designed to minimise the effect on disabled children within the area of their disabilities and to give such children the opportunity to lead lives that are as normal as possible.

    For children under three, it is common practice for LEAs to provide educational services through portage home visiting services or peripatetic sensory support services where they are needed. Those services are provided without statutory assessment or a statement. Such educational support is usually allied to support from the other statutory services such as health.

    Appropriate provision for young children is very important, so I entirely support what the noble Lord, Lord Rix, and my noble friend Lord Morris of Manchester have just said. We would be very happy to discuss the matter further with interested parties before Report stage if that would be helpful.

    I shall say a little more about why we think there are other routes to achieve what lies behind the amendments. I reiterate that the Government accept the importance of early identification of special needs and the provision of appropriate support for young children with SEN and disabilities, so I am grateful that this concern has been raised.

    Let me deal first with Amendment No. 87. This seeks to put a requirement on the face of the Bill to ensure that early years settings delivering government funded early education have an SEN and disability policy. I do not think that that is necessary. Perhaps I could take the opportunity to update the Committee on the kinds of actions that have already been taken.

    All partnerships are required under the School Standards and Framework Act to admit a plan for approval by the Secretary of State. To meet the criteria for approval, the plans are expected to provide information as requested in the Early Years Development and Childcare Partnership Planning Guidance. For 2000–01, the partnership plans had to include an annex addressing special educational needs and disabilities and this will also be a criterion for future years. Among other things, the guidance asks, in relation to children with SEN or a disability, for an implementation plan and details of how children will have equal access to childcare and early years services.

    All early years settings delivering government funded early education for three and four year-olds must be registered with their partnership to receive any grant. It is a condition of registration that providers agree to be bound by the conditions of grant and for periods during which they are claiming grant.

    It is also the case that all early years settings in receipt of government funding are required by law to have regard to the SEN code of practice.

    The 2001–02 revision of Requirements of Nursery Education Grant will make it a full condition of grant for settings to have an SEN policy. Setting such a requirement is currently an option for LEAs but making it one of the full conditions on which grant is dependent makes a very significant strengthening of the arrangements. All settings providing early education and/or childcare will be subject to disability duties under the DDA, once the Act is in force.

    In due course we will issue specific guidance for partnerships and their early education settings to help them to understand and implement the requirements of that legislation. The Disability Rights Commission's code of practice on Part III of the DDA and on the new disability duties to be imposed by the Bill will provide detailed guidance on the disability duties contained in those provisions.

    We have set targets for all partnerships to make sure that by 2001–02 they deliver the foundation stage, and by the end of 2001–02 an SEN co-ordinator—sometimes known as a SENCO—responsible for establishing and implementing the settings for SEN and equal opportunities policy.

    It is also the case that the latest version of the Ofsted Handbook for Inspecting Nursery Education in the Private, Voluntary and Independent Sectors requires the inspectors to obtain copies of the settings' SEN and other policy documents for consideration as part of the inspection. There is thus a genuine means of monitoring and enforcement which underpins our very great commitment to seeing improvements in this area.

    Finally, the Curriculum guidance for the foundation stage, which was published in June last year, sets out the importance of creating an inclusive learning environment. It makes clear that practitioners need to plan for each child's learning requirements, including those with particular needs. We will support partnerships and settings by issuing specific guidance to help them to understand and implement their obligations to children with special educational needs and other disabilities.

    Let me turn briefly to Amendment No. 88. Currently, local authorities are granted powers under the Education Act 1996 to supply goods or services to help with special educational provision for children with SEN in early years settings, delivering the government funded early education. This amendment seeks to change these powers to a duty but that is not necessary.

    Many LEAs and local partnerships are already working very effectively to support children in early year settings within the private, independent and voluntary sectors.

    In the 2001–02 version of the Early Years Development and Childcare Partnership Planning Guidance, we have asked the partnerships to make sure that they have developed a clear strategy to allow all children to have equal access to childcare and early educational services regardless of their special educational needs or disability.

    In 2001–02 we are making available £41.5 million to partnerships, via their LEAs, to fund training and development for early years practitioners, including the SENCOs so that there is much better infrastructure support than there has been.

    We are working with partnerships to increase the early identification of SEN and for them to intervene where it is required so that there is better access to appropriate support and services. Those actions demonstrate our long-term commitment to improving the provision.

    I turn now to the final amendment in the group, Amendment No. 89. Again, the Government do not believe this amendment to be necessary. We have set partnership targets in their plans to improve SEN support and provide help where it is needed, by establishing SENCOs and developing networks of area SENCOs.

    I hope that I have reassured both noble Lords who have spoken in this debate and my noble friend who asked me a specific question, that early years and childcare development partnerships, working together with their early years settings, local authorities and other support services are making significant advancement.

    The special needs of young children must and will be identified early; that is absolutely paramount. Partnerships will ensure that the appropriate course of action is taken. On that basis, and with a suggestion that further discussions can take place on how to really make this work, I hope that the noble Lord, Lord Rix, will feel able to withdraw his amendment.

    3.45 p.m.

    Before my noble friend sits down, I want warmly to thank her for her response to my intervention. With I am sure many colleagues, I welcome and will be pleased to take up the kind offer she made, as I am sure will the RNID, whose enormous help to all deaf people is so widely admired on both sides of the Committee.

    Would the Minister agree with me that current local government practice does not exemplify joined-up services in this area and, if so, how do the Government propose to change this?

    There is always room for improvement in joined-up services. That is a longstanding problem. Successive governments have often found it particularly difficult to get really good joined-up services, but this Government are committed to trying to improve them, particularly in relation to young children with special educational needs.

    I thank the Minister for her generous response to these three amendments which, as can probably be imagined, were inspired by the special education consortium. They did raise one point that I should like to leave with the Minister.

    The difficulty with the guidance is that something can be a requirement of a grant one year, as with the provider's policies. But it can change its status the next year if it is not a primary requirement. Equally, governments sometimes change and the special education consortium would welcome a commitment to anything more enduring than guidance.

    Having said that, I am delighted that the opportunity will be given to the SEC to have further discussions with the Minister's department. At the same time, the response was sufficiently encouraging for me to be able to say: I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendments Nos. 88 and 89 not moved.]

    moved Amendment No. 90:

    After Clause 9, insert the following new clause—


    (" . In section 576 of the 1996 Act (meaning of "parent"), alter subsection (4) insert—

    "(5) For the purposes of Part IV of this Act, a child may exercise the rights conferred on a parent in relation to the Special Educational Needs Tribunal if that Tribunal declares that he is capable of so doing."").

    The noble Lord said: Amendment No. 90 returns to the public the rights of the child vis-a-vis the parent and looks at the question of appeals to the tribunal. The Minister said some helpful things at an early stage of this Committee on the way in which tribunals would take into account a child's views. Nonetheless, a child does not have a right of action in front of the committee. There will be occasions, notably I suspect for the child in care, where the local authority outside the tribunal table is the child's parents for the purposes of the tribunal. Therefore, if the child has no independent right of action, he or she may have no real way of getting in front of the tribunal. There will be other occasions when the child is in dispute with his or her parents and wishes to make an appeal to the

    tribunal when his own parents do not. It is not unknown now for children to sue their parents for various reasons, and there will certainly be occasions where a child will wish to take action in front of a tribunal when the parents are unwilling to do so.

    If the tribunal feels it appropriate, I do not see why a child should not have a right of action in front of the tribunal. It would seem to be a reasonable extension in these modern times of the rights of a child. I beg to move.

    Amendment No. 90 would create dual rights of appeal for the parent and the child where the tribunal considers the child capable. This could be confusing and is not necessary. I hope that what I am about to say will be clear to the noble Lord, Lord Lucas.

    The new SEN tribunal regulations which will be laid before Parliament soon will entitle the child to attend the hearing of an appeal and to give evidence at the tribunal's discretion. The current regulations do not expressly entitle the child to attend the hearing, so we are moving exactly in the direction that the noble Lord, Lord Lucas, wants. In the light of these reassurances, I hope that he will feel able to withdraw his amendment.

    That does not answer the question I have raised. That is the answer the Minister gave a week or more ago, and which I welcome; it is excellent news. The question I am raising, however, is, where are the parents? Suppose the parent is the local authority. Is the local authority supposed to take itself to the tribunal? Are we really supposed to believe that that is practical? If a child in care is being dumbed down by the local education authority, will the local education authority take itself to court to make itself provide more?

    Surely there are occasions—I do not just refer to disputes between a child and his parent which I can understand may cause the Minister some difficulty—where the local authority is the parent for these purposes. I may be misreading the legislation, but it seems to me that there is no other obvious parent or no truly independent parent of a child in care. I will listen to what the Minister says on that, but that is the question I am asking.

    Where it is a case of children in care, the local authority is the parent and has to act as the parent. In those circumstances the local authority would be required to allow an eligible child to appear before the tribunal.

    Yes, they would appear before the tribunal, but who is going to take the case to the tribunal? The child has no right on its own initiative to take the matter to the tribunal. It is the parent who can take the matter to the tribunal, but the parent is the local authority. How on earth in those circumstances is a child supposed to get there? A child has a right to speak in front of a tribunal, but it cannot get in front of a tribunal. That is the problem I am addressing in the amendment. The Minister is not providing me with an answer. I will not press the matter further, but I will certainly come back to this on Report, and will be grateful for anything she can say to me before that stage.

    Before my noble friend withdraws his amendment—I suspect that is what he is going to do—there is a genuine lacuna in the Bill that my noble friend found. While he was speaking to the amendment I realised that there is a point to be considered here.

    It is fanciful to say that the LEA would never ever let a child down who is in institutional care within the authority. If the LEA is capable of letting down children with bona fide parents at home, and/or foster parents who can act in loco parentis for a child, then it is capable of letting down a child in care.

    As mere observers of children in care, some of us would say that many of our children, probably a disproportionate number who are in care, are let down. It takes a stretch of the imagination to believe that the LEA would find itself wanting and would take itself before the tribunal in the interests of the child. Whether the amendment of my noble friend Lord Lucas is acceptable or not, the point he is making is extremely important. It would help me and I suspect other members of the Committee to know how a child in those circumstances can be represented. We are all open to the consideration of novel alternatives to the normal process. This is a real issue. The most vulnerable are those children in institutional care.

    I accept a great deal of what has been said by both the noble Baroness and the noble Lord. However, it may be a mistake to see the local authority here as a totally seamless, single organisation. I said that it is the local authority which has to be the parent in those circumstances, not the LEA. The LEA is responsible for SEN provision but it is the local authority and indeed the social services department which have responsibility for children in care. Thus, it would be representatives of the social services department who would mount the case in support of the child where there was an argument as to whether the child was receiving adequate provision. I hope that that response helps although it may not entirely satisfy noble Lords opposite.

    In the most perfect of all possible worlds that would naturally be the case and Ministers would not have to sign up to ministerial codes. Nor would any of us go on registers of interest because we would all behave perfectly and no conflict of interest would ever cause anyone to suspect that we might act awry. However, this is an enormous conflict of interest for any local authority to be faced with: that its own local education authority—a very large part of the authority—is misbehaving in relation to a child and that that child wants the local authority to take its own local education authority to the tribunal.

    There is a clear and obvious conflict of interest and it is not satisfactory to rely on the goodwill of local authorities. That may in many cases be there but we know very well that in other cases it is not. We shall return to this matter on Report but for now I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    4 p.m.

    moved Amendment No. 91:

    After Clause 9, insert the following new clause—


    (" . The Secretary of State may by regulations made under this Part require local education authorities to reserve sufficient resources properly to discharge their duties under Part IV of the 1996 Act as amended by this Act.").

    The noble Baroness said: My noble friend Lord Jenkin is unable to be present because he is engaged in highly technical work on a Select Committee. I have agreed to move the amendment for him.

    In pressing the amendment, I want to refer mainly—it is my noble friend's very personal concern—to young people with varying degrees of sight impairment. The points I shall make in speaking to this amendment will, however, apply to many other conditions. I would first refer to a sentence contained within the special needs draft code of practice and it would be helpful to know whether there is any intention to alter this reference. It is paragraph 8.1 on page 69, at the top, which reads:

    "However resources are provided, legal responsibility for securing the necessary provision rests with the LEA. LEAs' schemes for financing schools made under section 48 of the School Standards and Framework Act 1998 may contain a provision repeating the requirement in section 317 of the Education Act 1996 which is set out above".

    That is the backdrop to what I want to say to this amendment, which would allow the Secretary of State to make regulations requiring LEAs to hold sufficient funding centrally to maintain specialist support and advisory services for children with low incidence disabilities, such as visual impairment—services which cannot effectively be delivered by delegation to individual schools.

    There are 22,000 children and young people under 16 in the United Kingdom whose sight is impaired in such a way that they require additional support for their learning. Visual impairment is a low incidence disability and one for which specialist support is vital from the earliest stage that visual impairment is identified. The funding implications for equipment and support can be enormous and there is significant need for flexibility in order for resources and expertise to be employed as cost effectively as possible.

    A sufficient level of funding must be held centrally in order to ensure the co-ordination and provision of support services, to enable statutory assessments to be carried out by qualified specialists in visual impairment. Entitlement for visually impaired pupils to equipment and support must be safeguarded. Access to mobility and orientation services must be guaranteed, an issue which was debated earlier. Access to transport must be provided not only during school hours, but also to make it possible for children and young people to participate in after-school activities such as homework and computer clubs and to promote the full inclusion of pupils who are visually impaired.

    We have talked about cross-party support for delegation to schools, but we all admit that there is a tension as to how an education authority can fulfil its central duties to provide for special needs and how the schools can meet those special needs unless there is a system of money flowing flexibly in such a way that the children who require the resources receive them.

    Most LEAs provide specialist visual impairment services to support blind and partially sighted pupils in mainstream, resourced and special schools in that way. That has proved vital to the process of inclusion of visually impaired children in mainstream schools and special schools for the past 18 years.

    The Royal National Institute for the Blind agrees that schools should be expected to presume responsibility for their own development needs and priorities, but it argues that specialist support services for low-incidence disabilities cannot be effectively or efficiently provided and that if sufficient resources are not retained centrally by LEAs for these services, there will be consequences. For example, the early identification of visual impairment is likely to be severely threatened. The LEA advisory services for visual impairment provide that key function prior to statementing, often well before a child even gets to school. Standards could be compromised, as individual heads and governors lack the knowledge and expertise to devise job descriptions and judge the competencies of qualified teachers of the visually impaired. They may not fully appreciate the teachers' need for specific resources and training.

    A further consequence would be the loss of the flexibility afforded by central funding of visual impairment staff, which enables them to be deployed where they are needed. Appointing staff to a resourced school may only guarantee employment for a few years to cover a given group of visually impaired children, leaving heads and governors with difficult hiring and firing decisions when children move on. An LEA-wide service can adapt to the needs of children in both resourced and other mainstream schools where children may need more or less support.

    While the recent Green Paper on local government finance contains proposals that could begin to improve the clarity and certainty of SEN funding—for example, by giving separate assessment for schools and LEAs and giving LEAs three-year funding settlements—the Government need to issue guidance to LEAs to ensure the future stability of LEA-wide support services for low-incidence disabilities such as visual impairment.

    To encapsulate what I have sought to say, delegation will go ahead. My party supports the Government's robust programme on that. We vie with the Liberals as to who was the first to support devolving funds to schools. There is a case for devolving some special needs funding to schools. All schools contain a range of abilities within the 20 per cent of children whom we have come to know as the Warnock children, from the low end to the severe end of the special needs scale. However, there is a role for the LEA and I am not suggesting absolute answers.

    My noble friend argued for flexibility in the system to ensure that the LEA's responsibilities are properly met and that the LEA properly supports the schools to meet their obligations under the law. It seems sensible to give the Secretary of State a reserve power to ensure that flexibility. I beg to move.

    I support the amendment. The important issue of resources was raised on Second Reading and during the first day in Committee. On this occasion I support entirely what the noble Baroness, Lady Blatch, has said in relation to the role of LEAs. It is vital that they retain an overall function for the supply of support services. There are many specialist support services which cannot reasonably be delegated to schools and where it is much more efficient and sensible to retain them at the LEA level.

    While it is important that the regulations make clear that the LEAs have the responsibility we are discussing and that they should retain at the LEA level sufficient resources to be able to carry out that responsibility, it is also important that the Secretary of State ensures that, under the standard spending assessments and the revenue support grants, the LEAs receive enough money to do so.

    While I entirely agree with the gist of what the noble Baronesses have said, I fear that I may disappoint them because the Government do not feel that this amendment is necessary.

    The reason that the amendment is not necessary is that it would allow regulations to be made requiring LEAs to reserve sufficient resources to discharge their duties under Part IV of the Education Act 1996, as amended. Part IV covers the main provisions dealing with LEAs' duties towards children with special educational needs.

    It is of course important that LEAs continue to spend money in this area, but this amendment is unnecessary because they will retain their statutory duties towards children with special educational needs. Lack of, or failure to reserve, such resources by an LEA would not relieve it of such duties. These duties include those under Section 313 (to have regard to the code of practice), Section 315 (to keep its arrangements for special educational provision under review) and Section 321 (duty to secure that it identifies children in its area with SEN, and for whom it is necessary that the LEA determines the special educational provision for which their learning difficulty calls).

    As these statutory duties remain, there should not be a need for secondary legislation to require sufficient resources to be set aside: by definition LEAs already have to plan properly to meet their statutory requirements and, in consequence, ensure that the necessary funding to carry these out is available. We think that the law is sufficient here and we do not have any intention to change the words in the code on this point.

    Even with the move to greater delegation of funding to schools, LEAs will still retain, as they should, a key role in SEN provision. We have recognised this continuing key role in our October 2000 policy paper, The Role of the LEA in School Education. But we also recognise that schools themselves are, in many cases, best placed to determine the most appropriate provision for pupils with SEN, including those with visual impairment. Governing bodies of maintained schools must continue to be under a duty to use their best endeavours to secure that the special educational provision which a pupil's learning difficulties calls for is made in those schools.

    There are many examples of funds being delegated to schools while, at the same time, a high quality service to those schools has been maintained by the LEA. I believe that North Lincolnshire is a good example of a place where this happens effectively.

    In the light of that explanation, I hope that the noble Baroness, on behalf of her noble friend, feels able to withdraw this amendment.

    Before my noble friend speaks, I would be fascinated if the noble Baroness could let me have whatever information she has on how good Lincolnshire is. I know this is a problem which troubles a number of local authorities. They are faced with a target of 85 per cent delegation and many rural local authorities will be spending close to 6 per cent now on transport, which they are not allowed to delegate. The SEN budget is 5 per cent and rising and, in good local authorities, it can rise quite quickly because the understanding of needs, and the provisions that need to be made, is rising and they find themselves in a great deal of difficulty. Blindness affects 22,000 children—an average of one per school. That means that a lot of schools do not have a blind child from one year to the next and then suddenly two will come. How can a local authority delegate funds to deal with such sporadic occurrences? There are times when it is more efficient to keep the resources in the centre and allocate them as particular needs arise in schools.

    That is a difficult issue for local authorities. I have heard many of them saying that they do not know which way to turn. Since the noble Baroness does know which way to turn, I would be delighted if she would inform me so that I can pass on the good news.

    The Government predict that there will be a substantial shift of young people into mainstream schooling. None of us will be in a position to challenge that presumption until we see what happens.

    I have looked a number of times at the financial appraisal in the Explanatory Notes. It does not tally with the idea that there is going to be a shift of young people with special educational needs from special into mainstream schools. Paragraph 130 says:
    "The Bill will require LEAs and schools … to plan to increase the accessibility of schools to children with disabilities, and to implement their plans".
    The estimate for that is £4 per school. There are 25,000 schools in this country, and the budget is £100,000 per year. I can barely pay for the time to write a letter that would cost £4; it is a very strange sum of money.

    Paragraph 129 says:
    "The Bill will require schools in England, Wales and Scotland to make reasonable adjustments to ensure disabled children are not placed at a substantial disadvantage".
    It goes on to say:
    "We estimate the costs of these duties to be within the range of £1.5m—£3m per year".
    The Minister may rightly say that not every school needs adjustments, but many schools will if they are to take partially sighted young people. Noble Lords will remember that I referred to orientation classes as well as bricks and mortar.

    The Explanatory Notes also say:
    "the cost of funding LEA projects to make schools more accessible will be supported by the Schools Access Initiative."
    Some £220 million will be made available over the three years. That works out at £9 per school—again a modest sum. I am deeply suspicious about trying to reconcile the Government's prediction that a substantial number of children will move from special into mainstream education with their expectation of the resources that will be required.

    It will he difficult to predict what will be needed with any accuracy. For example, the staffing costs are said to be worth nothing. No amount is allocated for them. Presumably, the Government think that there will be no staffing implication. If those young people are to have support staff in school who transfer with them, there will be a staffing implication. Paragraph 141 says:
    "The SEN provisions will have very few manpower implications".
    The Government do not even see fit to put a figure on it.

    I find it difficult to reconcile the Government's robust prediction that many more young people will move into mainstream with the most modest costs that I have ever seen in a Bill. We need some means by which national government can assist LEAs and schools, with funding streaming from one through to the other, so that they meet their obligations without creating serious adverse effects on other parts of the service. We have had sensitive debates about impact on other young people, in particular, children who do not have special educational needs. The impact would be quite substantial if there was not some flexible arrangement for the Government, who are the proposers and sponsors of this legislation, to ensure that the resources are in place. Otherwise we will have a building up of expectations and a dashing of them once the Bill is enacted.

    4.15 pm

    Perhaps I may try to respond to some of those points. First, I should be delighted to send information on north Lincolnshire to the noble Lord, Lord Lucas, and explain why that council seems to be a role model for other authorities. Perhaps I may say also that the Government have always been quite clear that they are not delegating to schools responsibility for special educational needs provision. That is something that we have felt very strongly should be held back. Indeed, there are members of the noble Lord's party who believe we should have 100 per cent delegation to schools. But how could we if we are going to have local educational authorities providing for adequate term provision which needs to be done by the authority?

    Perhaps I may say to the noble Lord, Lord Lucas, and the noble Baroness, Lady Blatch, that I indicated earlier in Committee that substantial additional amounts of money are being allocated for the inclusion parts of the Bill. There is some confusion in that what the noble Baroness read out was not about the inclusion parts of the Bill, but about the disability part of the Bill where the costs are much lower. The Government recognise that, and I said at Second Reading that there are extra costs in moving towards mainstreaming. Indeed, that cost, as the noble Lord, Lord Baker of Dorking, said at one point, is well worth providing for. We are doing just that.

    I hope that explanation will clarify the position. The £1.5 million to £3 million is for reasonable adjustments under the disability part of the Bill. It is difficult to predict what they will be, but many of them will not in fact be very expensive on top of all the extra funding that is going in to promote inclusion.

    The noble Baroness, Lady Blatch, is absolutely right when she says that a low incidence disability, such as visual impairment, will not be something for which many schools will have to provide. I imagine that in some cases those children who are blind or visually impaired will be in units attached to part of a school where there will be several such children rather than being distributed across a wide range of schools.

    I hope that what I have said on funding helps to explain the position.

    I stand chastened for reading the financial paper, but it is the only financial paper there is in the Explanatory Notes; there is no other. It is headed up, "Effects of the Bill"—I take that to mean the Bill before us—"on Public Sector Finances". I read out a number of references, to schools, post-16, rights of redress, advice and conciliation services and SEN provisions.

    My understanding is that a financial paper at the end of any Explanatory Note refers to the whole Bill. It is not just as the Minister said; that is, that it only refers to part of the Bill. If it only refers to part of the Bill, there ought to be a cost appraisal of what the full measures of the Bill include.

    The Minister has spoken on good practice and referred to Lincolnshire. I happen to know Lincolnshire very well; it is my neighbouring county. A good friend of mine, Mr James Speechlcy, is the leader of the Lincolnshire Conservative Group. I know that the council's reputation goes before it in many spheres, including provision for special needs. So good practice is one thing but ultimately there is a tension in all our minds about the rhetoric and the expectations that are being raised by the Bill among many groups concerned about provision for children with special educational needs and the likely reality on the ground; namely, that local authorities are extremely hard pressed at present. They will face real difficulties. The noble Baroness said that we were not placing on schools the responsibility for delivering special educational needs. That is not true. Schools will have responsibility for delivering special educational needs. There seems to be no plan. If we refer to children with special educational needs rather than just those with severe learning difficulties, up to stage 3 it is very much a school-based provision. Schools have that part of their budget delegated. The amendment should ensure that LEAs and schools are able to meet fully the obligation with regard to this new tranche of young people coming into mainstream schools who will have the higher end of learning disabilities to be managed within mainstream schools. The Government are placing that obligation upon schools and LEAs through this legislation. The Government's responsibility is to ensure that they are held to account for that.

    My noble friend will want to read carefully what has been said during the course of this debate and I have no doubt that he will refer to the matter at a later stage. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendment No. 91ZA not moved.]

    moved Amendment No. 91ZB:

    After Clause 9, insert the following new clause—


    (" . In the 1996 Act insert—

    "343A. The Secretary of State shall approve and fund formal training and qualifications for support staff operating to meet special educational needs within the maintained sector."").

    The noble Baroness said: In moving the amendment, I want to address training. It is a probing amendment. One of my concerns with the Government's proposals in the Bill is that they will lead to the early closure of special needs schools. Indeed, there is already evidence that special schools are closing across the country, many of them on financial grounds. The children normally served by those schools could be at a disadvantage if the support in mainstream schools is not adequate. This particular amendment refers to the effectiveness of the people—the actual staff—who will be supporting those children.

    I am concerned about the standards of training and qualifications of support staff in mainstream education. At present, special schools are apparently providing much of the informal training "on the job". With special schools admitting a broad range of children with special needs—anything from Down's syndrome or deafness to behavioural or emotional problems—there has been less pressure from formal qualifications in the mainstream sector. It has almost been a question of learning by osmosis. I have met many non-professional staff who are working with children with disabilities in the special schools' sector of special needs who have performed quite brilliantly. Therefore, one would say that if there were any test of their competence, they would pass with flying colours.

    Although in many parts of the mainstream sector there are currently higher thresholds for recruitment, in many cases there remains very little additional formal training. The closure or reduction of the specialist establishments, where most of the existing training takes place, will lead to a loss of training environment for support staff. Those will need to be replaced by the introduction of, for example, an NVQ in special educational support or some other recognised qualification. I feel strongly that it must remain the case that schools should retain the right to employ whoever they consider suitable for the post. To this extent, therefore, I am not proposing that such an NVQ should be a compulsory pre-requisite for employment as a special support assistant. I repeat: we can all think of staff employed as special assistants who do an absolutely wonderful and near-professional job. I believe that formal training provision should be made available, especially since the opportunities for informal training in special schools will almost certainly be reduced by the Bill. I beg to move.

    My noble friend has a point. We shall have to make sure that people know what they are doing when they come newly into a situation, and some form of training provision would certainly seem sensible. If it is covered somewhere else, I shall be happy. But I believe that this matter must be addressed. Later amendments of mine cover teacher training.

    Significant record levels of funding are already available to LEAs and schools through the SEN component of the Standards Fund to support the training and professional development of both teachers and support staff working with children with SEN. In the current financial year we are supporting expenditure of £26 million on SEN training—an increase from £21 million last year—and we envisage that £30 million of the total £82 million available for SEN under the Standards Fund in 2001–02 will be spent on training.

    That funding is designed to support the implementation of the SEN code of practice and to give direct, practical help to schools and LEAs when implementing the policy of inclusion. But it is designed to be flexible as needs in one area, or indeed from one school to the next, may not necessarily be the same.

    A wide variety of providers currently offer courses of training in SEN, including some of the specialist voluntary bodies. We believe that such diversity is healthy, allowing flexibility and the ability to respond to changing needs.

    We can play our part. We are making available £350 million for recruitment and training of teaching assistants between April 1999 and March 2002. Within that programme of support we have devised an induction training course for newly-recruited teaching assistants, which includes an SEN component, SEN frameworks and processes within which teachers and assistants work, developed with the help of a member of the National Advisory Group on SEN. That course is being delivered across the country by LEAs from the autumn term 2000. There is also coverage of SEN within the literacy and numeracy modules, and we are keeping the need for further SEN training content under review in the light of experience with those courses.

    We have been working closely with the Local Government National Training Organisation and the Qualifications and Curriculum Authority in connection with their work on developing a national, UK-wide set of occupational standards for teaching assistants. Both are expected to be ready this year. They will provide an overall framework within which teaching assistants can demonstrate their abilities and develop their careers.

    The amendment refers to formal approval of courses and qualifications. We do not see the case for such a system at a time when we are trying to reduce bureaucracy in education. Indeed, creating a new administrative burden could have the unintended effect of dissuading current or potential providers from offering courses, which would be a pity. That is not to say that the Government should have no involvement in training at all: of course they should. There is a long-standing requirement for teachers of classes of pupils with visual impairment or hearing impairment or a combination of both to have an additional mandatory qualification approved by the Secretary of State and, of course, there are specific requirements laid down in relation to courses of initial teacher training, currently under review by the TTA. However, we see no need for a general requirement for courses for support staff to be subject to formal approval.

    Rather, we see our role as lying in somewhat different directions. We have established an inclusion website which is designed to promote good practice and publicise SEN materials and facilities available to teachers and support staff. That would include the courses that are on offer. And we will be working with the National Association for Special Educational Needs and others over the next year to develop some teacher training material of our own designed to meet specific needs. Our intention would be to cover the interests of support staff in this material.

    I hope that, having heard what I have had to say, the noble Baroness, Lady Blatch, will feel able to withdraw the amendment.

    4.30 p.m.

    I am grateful to the noble Baroness for that reply. She made many helpful points which I should like to read carefully. I should like to make three quick points. One is anecdotal. I was discussing the Bill with somebody who told me about a parent with an autistic child about whom that parent was extremely worried. The parent was not having the happiest experience. The special school assistant who was working with that child had a mere two hours' training from a standing start and the situation was not working out very well.

    Secondly, I believe that there is a need to think more positively about training for those who are working with young people with sometimes very complex special needs.

    Thirdly, it sounds as though I am pressing the Minister to do something about this matter. I hope that we will not go down the road of adopting the rigid recruitment bar that used to be applied to social work training where one had to have a very specific qualification. It seems to me that in the area of special needs different qualifications will be needed. Some thought needs to be given as to the suitability of someone to work with a young person with special needs. I hope that we will keep in mind the need for training to be made available; the need for people to be better trained and the need for them to receive more suitable training. However, we also need to adopt sufficient flexibility to enable schools to employ people whom they believe to be the right people to work with children with special disabilities. I beg leave to withdraw my amendment.

    Amendment, by leave, withdrawn.

    Clause 10 [ Discrimination against disabled pupils and prospective pupils]:

    moved Amendment No. 91A:

    Clause 10, page 8, line 33, at beginning insert ("Subject to subsection (IA) of this section,").

    The noble Lord said: I rise to move Amendment No. 91A and to speak to Amendments Nos. 92A and 92B. These three amendments are probing amendments relating to the word "justified", which is in the proposed new Section 28B(1)(b). Amendments Nos. 91A and 92B relate to independent schools. I shall come later to Amendment No. 92A which relates to maintained schools.

    Independent schools are often small and some specialise in particular ability ranges in sport, music, gymnastics or whatever. Can every school be expected to accept any and every form of disability? There are so many different kinds of disability. The National Union of Teachers says that the range of disabilities is vast and that enormous research would have to be undertaken for schools to inform themselves of every possible condition. Perhaps each school in the independent sector should be encouraged to cope with one disability. However, as I read the Bill, it might deny an independent school the opportunity to concentrate on doing one job well. Will the noble Baroness confirm that the word "justified" in the proposed new Section 28B(1)(b) covers a school which elects to concentrate on one disability and provide for it effectively but it could then reject children with other kinds of disability?

    Another problem relates to Asperger's syndrome and other forms of autism and emotional and behavioural difficulties. Having too many children with one type of difficulty in a school can be disadvantageous to all those children as well as to the other children in the school. Is an independent school entitled to say, "Sorry, we now have six children with Asperger's, we cannot take your child?"

    Finally, there is the question of costs for independent schools. Can independent schools make charges for extra services? The school with which I am familiar has a good service for dyslexic children. It has about a dozen dyslexic children and, of course, an extra specialist dyslexic teacher is required. The parents of those children pay extra for that teaching. If they did not do so, the burden would fall upon all the other parents. Most independent schools today are non-profit making schools and someone has to bear the cost. Unless the clause is amended, or the word "justified" is very clearly defined, this clause might mean that independent schools had to accept every single pupil disability of any kind.

    I move to Amendment No. 92A and the subject of maintained schools. The same problem was raised by the noble Lord, Lord Lucas, in the context of Amendment No. 91. I see two sets of circumstances which might cause problems in the interpretation of the word "justified". First, it simply is not realistic to suppose that no additional costs will be involved and no additional staff needed to enable children with many types of disability to participate fully in a mainstream school. Each type of disability will generate its own costs and staff needs.

    Surely common sense and indeed a responsibility to use public resources effectively dictate that where a local authority has several schools of a particular kind—secondary, primary or whatever—each school should specialise in a particular kind of disability. Perhaps school A would specialise in mobility and school B in hearing difficulties. How do we know whether the courts would find that a local authority's policy on this matter falls within the category of being justified?

    My second point relates to main schools and the issue of Asperger's and emotional difficulties which I raised in the context of private schools. The question is the same.

    Clause 11(1)(b) refers to the treatment in question being justified. Justified by what? Since we shall not see the guidance until after we have passed the Bill, can the Minister give a categorical assurance that the problems I have raised will be covered by the words "the treatment in question is justified"? I beg to move.

    I support the noble Lord, Lord Northbourne. It is important that we make clear that there will be specialist schools, whether they are independent selective schools or subject specialist schools, and their right not to select should be preserved in the interests of all children.

    This grouping includes Amendments Nos. 121A and 131A. I am not sure that the noble Lord, Lord Northbourne, spoke to those amendments, although they are in the grouping. Does he wish to do so?

    Let us deal with Amendments Nos. 91A, 92A and 92B. The Bill will outlaw discrimination on the grounds of disability in the provision of education—every field of education and every provider of education. It will place duties on schools to help to remove the barriers which disabled pupils face in accessing education. Seven per cent of children are educated in the independent sector and we believe it is right that independent schools are fully covered by the new duties on schools. Independent schools are already fully covered by the Sex Discrimination Act and the Race Relations Act. We believe that pupils in independent schools should be protected in the same way as those pupils in maintained schools. I am sure the Committee would agree with that approach, which completely underpins the Bill.

    Amendment No. 92A would allow a school to refuse to accept an application for admission from a disabled child, on the grounds of his disability, if refusing that application would be in the best interests of the child. I assume that I am right in saying that the intention behind this is to ensure that schools—including independent schools—could refuse to admit a disabled child if they did not, for example, have the facilities to provide for that child and felt that they could not adequately meet the child's needs.

    This reopens the very significant debate we have already had in respect of amendments on Clause 1. During that debate, we discussed at some length how the best interests of the child might be represented, in deciding which school the child should attend. It would not be wise to repeat that discussion here, but I stress that with the right support most children could be included in mainstream schools. The test of whether the children should be educated in mainstream schools should be limited to what parents want and to safeguarding the interests of other children. Clause 1 and the SEN framework will provide that.

    However, we do not expect all schools to have to admit any child, no matter how profound their needs. Disabled children with more severe needs will have a statement of SEN. Under the SEN framework, LEAs are responsible for arranging suitable school places for children with statements where the child's needs will be adequately provided for. Under the new disability duties a school may be able to justify less favourable treatment or a failure to make reasonable adjustments in certain admission cases. However, once the disability duties have been in operation for a while, more and more schools will be able to cater for children with a range of disabilities.

    The aim of Amendments Nos. 91A and 92B is to ensure that independent schools can continue to select pupils on the basis of ability or aptitude. We expect schools that currently operate genuine selection arrangements to be able to continue to do so. The Bill contains an automatic justification to the less favourable treatment duty for permitted forms of selection. We wish schools to be under the reasonable adjustments duty in relation to their admissions arrangements. However, there is an express factor permitting schools to take into account the need to maintain standards when deciding what the reasonable adjustment duty requires them to do.

    While there is no need to maintain a particular standard when selecting pupils, independent schools will be expected to change their selection arrangements. A case in point might be selection on the basis of a written exam. Obviously, a school could not refuse a place to a child using a wheelchair who had passed the written exam on the grounds that the child would not be able to participate in the cricket team. We expect the DRC's code of practice to provide detailed guidance on that.

    Schools that are able to select on the basis of ability or aptitude should make such reasonable adjustments to the selection arrangements as may be necessary to ensure that disabled pupils are not substantially disadvantaged. For example, if a school selects on the basis of an entrance examination, it will have to consider taking reasonable steps to ensure that a disabled child with, say, dyslexia, is given more time to complete the exam. After such reasonable adjustment to the process of the entrance exam, the results of the exam will determine which children are offered places at the school.

    The noble Lord, Lord Northbourne, asked specifically whether a school can accept one disability but reject another. Yes, a school could not admit a child if it could not cater for that child's needs. The school would have to provide justification that it could not cater for that need, but if it could provide such justification, it would have the right to refuse a child. Justification will be explained and illustrated in the code of practice. There will also be a consultation process on the code. I trust that that helps the noble Lord and that he will feel able to withdraw the amendment.

    I am most grateful to the noble Baroness. I shall certainly have to read what she has said because there seems to be a conflict there. On one hand, if a child wants to go to a school, the school has to provide the facilities. On the other hand, the child can be rejected if the school does not have the facilities. I will try to understand that. If the noble Baroness would like to take deal with Amendment No. 121A as well, as she has her notes there, I can speak to it quite simply. Indeed, it speaks for itself.

    Amendment No. 121A would limit in various ways the duty on independent schools to plan to increase the accessibility of their schools. The limitation of the duty would apply only to the principal parts of the school. We are clear that a duty on schools to plan to increase accessibility should cover all school buildings and premises. A child in a school wants to make use of all the facilities available, not just the main parts. It may be that a school decides to start planning for increased accessibility by focusing on the principal parts of the school buildings, but once the principal parts are accessible they will then want to focus on the other parts of the school. Planning for disability access and implementation of plans have to be a progressive continuing process and should not be limited.

    Secondly, the amendment seeks to limit the planning duties so that schools do not have to make any alterations which may change or damage features of historical or architectural significance. I can assure the noble Lords that the planning duty will not override regulations covering listed buildings. We would not expect schools, for example, to widen the doorways and install lifts in a Grade I listed building. That would clearly be ridiculous. But there are other things that can be done.

    I realise that some independent schools are housed in buildings of historical importance. They, too, will have to comply with a duty to plan for increasing the accessibility of their schools for children with disabilities. These schools will have to consider what they can do within the statutory framework governing historic buildings. This might include installing hearing loops or specialist IT equipment

    Thirdly, the amendment delays the implementation of any physical changes until 20 years after the plan has been prepared. It would be quite unacceptable to allow any school 20 years before they would be expected to start implementing their plans. We want to make progress in removing barriers to learning now and not in 20 years' time. I am sorry to be impatient, but I think that it is right to be impatient about these things.

    Let me stress, as soon as the planning duty is implemented, we expect independent schools to start planning for increased disability access and for implementing their plans. In considering implementation, independent schools will, of course, have to consider available resources, but they will also consider whether adaptations could be linked to other planned building works or refurbishments. That is understandable and would make adjustments and adaptations less costly.

    Finally, the amendment seeks to require that plans will be based on recommendations by independent schools inspectorate. Certainly my officials will be consulting with the sector about what guidance will be required for independent schools in taking forward the planning duty. The proposal that plans should be based on recommendations from independent schools inspectorate will simply delay.

    It is interesting to note that only about half of all independent schools belong to an association affiliated to the Independent Schools Council which inspects member schools. It would not therefore be appropriate to expect all independent schools to base their plans on recommendations by the independent schools inspectorate.

    Amendment No. 131A would require the Secretary of State to provide grants to independent schools to meet the cost of the planning duty. Independent schools will be expected to meet the costs of increasing the accessibility of their schools. We recognise the important role of these schools but they are independent, often commercial institutions and in most cases we do not think it appropriate to provide direct grants to them. But if, very exceptionally, a case arose where some assistance was justified and funds were available at the time, then it would be open to the Secretary of State to make a specific regulation to pay a grant in that particular case, under the existing powers in Section 485 of the 1996 Act—just as we have done in the recent past for capital grants to one or two individual independent schools in the music and ballet scheme—so there would be no need for a new power on the face of this Bill for that purpose.

    In summary, I reiterate that independent schools must be covered by these new provisions, like other schools. Disabled children should not be discriminated against whatever kind of school they are in.

    I hope that my assurances and the explanations of the duties that will apply to independent schools are able to persuade the noble Lord, Lord Northbourne, to withdraw the amendment.

    4.45 p.m.

    I did not have much faith in the period of 20 years. However, I wish to raise the first issue proposed in Amendment No. 121A.

    I have spent 40 years on the governing body of the independent school that I attended as a child, so I am deeply familiar with it. The school has 11 staircases on four different levels, two teaching rooms up one tower and another teaching room up another tower, and there are differences in levels within each floor. It will be very difficult to provide wheelchair access to all those areas, so presumably the areas that do not have wheelchair access will have to be discarded or used for some other purpose. Are we really at that stage? Is it as bad as that?

    No, I do not think it is as bad as that. It is a matter of commonsense application of the Bill when it is enacted. It is a matter of planning timetables sensibly so that difficult-to-access rooms are used for provisions that may not be universal across the curriculum and therefore essential for every pupil.

    Anyone who has run an educational institution, whether an independent school, a maintained school, an FE college or a university, will be familiar with what the noble Lord, Lord Northbourne, has just described. Most of our school buildings were built at a time when there was much less sensitivity to the needs of disabled students and pupils than there is today. It is a matter of common sense, trying to apply a timetable in a sensible way and to make the changes that are required to the most important parts of a school building, leaving those that are much more difficult until later or using them for a slightly different purpose.

    Can I ask the noble Baroness a quick question? Is there a power to require an independent school—whether it is a special or a non-special school—to accept children with special educational needs? Is there a power to compel physical changes to the buildings? If so, it would be helpful to have those requirements set out, so that schools know what their protected areas are and can defend themselves in the not untypical circumstances referred to by the noble Lord, Lord Northbourne.

    There are no physical features duties on any schools, either independent or maintained. It is a matter of making reasonable adjustments as and when it is possible to do so. There is an overall power requiring schools, whether maintained or independent, not to discriminate.

    If I was doing business with the noble Baroness, I would be perfectly happy, but I am not; I shall be doing business with local authority inspectors, or in an extreme case, with the courts. They will not necessarily interpret things in the same reasonable way as the Minister. That troubles me, but I shall read the Minister's comments with interest and bring my concerns back on Report. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    moved Amendment No. 92:

    Clause 10, page 8, line 34, at end insert ("on the grounds of the disability of that person").

    The noble Baroness said: I shall speak also to Amendments Nos. 93, 95, 159, 160 and 217. I hope that the amendments make it absolutely clear that unlawful discrimination should be discrimination on the grounds of disability. This part of the Bill needs to be worded very carefully if it is not to be abused. It is right that a disabled person should be protected against discrimination on the grounds of their disability, but fair discrimination applies to all pupils, and must include people with disabilities.

    Schools are entitled to discriminate between applicants in their admissions criteria. For example, an academically selective school can reject an applicant on the grounds of insufficient academic ability, whether the applicant is disabled or not. A school specialising in music, dance, or sport is entitled to discriminate on those grounds. Clause 11 attempts to define the discrimination that is to be outlawed in the Bill. However, in addition to Clause 11, it would be better for greater clarity simply to insert into Clause 10 that the discrimination, which is to be unlawful, is discrimination on the grounds of disability. That is quite simply what I have done in this amendment.

    The noble Baroness gave an example of a person in a wheelchair taking an academic test for entry into a school which was selective on academic grounds. That is a very good example that, if the person is rejected, it should not be on the grounds of disability but on the grounds that they are not up to the mark, or that there has to be some selection process to take a limited number of people from the list.

    Clause 10 reads:

    "it is unlawful for the body responsible for a school to discriminate against a disabled person";

    but that is not specific enough. What it should say is that it is unlawful for the body responsible for a school to discriminate against a disabled person on the grounds of the disability of that person.

    It is true that Clause 11 seeks to define the meaning of discrimination as applied in this Bill, and it does so in a rather tortuous manner. However, it would give much greater clarity to the Bill, while leaving in Clause 11, if we started by making discrimination on the grounds of the disability of the person unlawful.

    My other two sets of amendments do the same in other parts of Clause 10. My third set of Amendments, Nos. 159, 160 and 217, also refer to the further and higher education part of the Bill. I beg to move.

    Amendments Nos. 92, 93, 95, 159. 160 and 217 seek to confine the duty on schools and post-16 institutions not to discriminate against disabled pupils, students and people enrolled on courses on the grounds of disability only.

    Those amendments are not necessary. Part II of the Bill outlaws discrimination on the grounds of disability. Clauses 11 and 26 make it entirely clear that discrimination requires either less favourable treatment of a disabled person for a reason relating to his or her disability, or a failure to make reasonable adjustments to ensure that disabled persons are not placed at a substantial disadvantage in comparison with non-disabled persons, where that failure is to the detriment of a disabled person. The Bill could not be any clearer on that point.

    The Bill does not prohibit discrimination against a disabled person on the grounds of, say, race or sex, because we already have effective legislation—the Race Relations Act and the Sex Discrimination Act—which outlaw discrimination on such grounds.

    All of the amendments tackle the same fundamental issue and I hope I have persuaded the noble Baroness that they are unnecessary in respect of either pupils, students or indeed adults. I hope that the noble Baroness will feel able to withdraw the amendment.

    Perhaps I can just raise a point on Amendment No. 95. Subsection (4) seems to present problems if it stands as it is. I cannot see how a school is meant to deal with, say, a boy with a severe case of ADHD. He may be extremely disruptive in class; his condition may be getting out of control and causing a great deal of difficulty to other pupils. If, as part of the management of that child and to bring home to him that he should perhaps in some way be subject to the same disciplines as other pupils and to set him objectives to help him come into line with reasonable standards of behaviour, the school wishes to exclude that child, it will no longer be able to do so. There will be no way in which exclusion of children can be used as a measure against a child where the disruption is a direct result of the disability.

    Am I right in understanding that that is to be the position? If so, how would the Government wish a school in that situation to proceed?

    5 p.m.

    We have already had a long debate about this in relation to the efficient education of other children where the Government were criticised by some members of the Committee for having included such a clause. Under this part of the Bill, yes, the schools will be able to say that a child who is consistently disruptive, out of control or disturbing the education of others can be excluded on the grounds of justification. They will have to provide that justification. But through that justification that will become possible.

    I am not sure whether this is the right time to raise a point about the new sports academies which are being formed. If they are not used to training wheelchair athletes, would they be allowed to discriminate? I hope not. If they were not used to dealing with that type of athlete I wondered whether they might be brought to account. I ask that as a matter of clarification.

    I should like to come back to the question I raised earlier. Yes, I understand that discrimination can be justified, but I did not understand Clause 28A(4) to relate to discrimination. It states, as entirely separate from discrimination, that it is unlawful for a school to exclude a child on the grounds of discrimination. That seemed to be phrased separately in some way from subsection (1). However, that is clearly my misunderstanding, so I shall shut up.

    I am not sure that I completely followed the question of the noble Lord, Lord Addington, but I believe that the answer is no, as long as it is a maintained school.

    There is clearly still some confusion about it. I am more than partly satisfied with the Minister's explanation. She appears to be saying that clause 11 has the same effect as I was trying to achieve through the amendments. I shall read carefully what the Minister said. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendments Nos. 92A to 93 not moved.]

    Clause 10, page 9, leave out lines 5 to 9 and insert—

    ("(3) For the purposes of subsection (2), education or associated services shall include the provision of education and services related to teaching and extracurricular or leisure activities organised by the school for the pupils attending that school.").

    The noble Earl said: I should like to make two points, one serious and one slightly frivolous. Everything that I shall say relates to the application of the Bill in Scotland. Indeed, the amendments have been inspired by the Law Society of Scotland, the Consortium of Children in Scotland and the RNIB Scotland. The frivolous point is that my name seems to have become prepositionally deficient throughout the Marshalled List: there is an "of" missing. That is not an amendment; perhaps it should be an amendment to the Marshalled List.

    The purpose of amendment No. 94 is to probe the meaning of the words "education" and "associated service". It also attempts to widen the possible meanings to ensure the inclusion of extra-curricular and leisure activities organised by the school for the benefit of pupils attending that school. The existing subsection (3), which the amendment would delete, gives the Secretary of State powers to decide retrospectively what education and associated services are and allows the Secretary of State to alter the definitions—and hence the extent of the clause—by regulation.

    I am confused about who the Secretary of State is, especially in the Scottish context. I should have thought that the definition about education should come most naturally from the Education Secretary, the Scottish Minister in charge of education or the Secretary in the National Assembly for Wales. However, I do not have a problem with the possibility of there being three different definitions as a result.

    To focus on the merit of the amendment, I believe it would be useful to have on the face of the Bill from day one a clear commitment that discrimination in education is outlawed in all aspects of the life of the school and not just in any narrow definition of, say, the classroom and the dining-hall. Subsection (3) will not help the reader of this future Act to understand to what it applies. Only by acquiring the regulations when they are published can the reader begin to understand the extent of this ban on discrimination. Surely, that is not a useful purpose for any Bill to have.

    I anticipate that the Minister will tell me that all this is explained in the explanatory notes. However, these will disappear and will not be available to readers after enactment.

    Amendment No. 157 is grouped with Amendment No. 94, which is another amendment needed in the Scottish context. There are several attempts in the Scottish legislation to define who is a disabled person and what their characteristics are. Since this legislation will alter somewhat the admissions process for all educational institutions in Scotland and, no doubt, elsewhere, it is essential that it is clear to whom the legislation applies and to whom it does not apply. I believe that the headings of physical, mental, emotional and psychological disability are helpful in establishing who exactly may not be discriminated against.

    Amendment No. 162 is also in this group and is designed to probe and clarify the extent of the description of higher and further education. The amendment proposes to place a description of that extent on the face of the Bill rather than leaving the definition to a hotch-potch of secondary legislation to be published as and whenever the relevant Secretary of State feels like it. The amendment gives a broad definition demonstrating that discrimination issues have to be considered in that full context.

    Finally, and briefly, Amendment No. 180 probes the meaning of disabled person and further and higher education by providing a broader definition. The amendment will be helpful but only if it is accurate. I can see little advantage if the Bill does not make it clear at whom it is aimed. I beg to move.

    We need the regulation-making power in Clause 10 because the boundaries of what constitutes education or associated services are not always black or white. Where it is unclear whether a particular service constitutes education or an associated service, the regulation-making power will help clarification. Amendment No. 94 seeks to set out on the face of the Bill certain services which will be included with those covered by the new duty not to discriminate against disabled children in the education and associated services provided by the school. However, I am clear that we need the flexibility here of a regulation-making power.

    The Disability Rights Task Force recommended that all activities covering the life of the school should be subject to the new duty. The task force described what it wanted to secure as a set of new anti-discrimination duties which covered the life of the school. We followed that recommendation. This will, of course, include the provision of education and services relating to teaching and extra-curricular or leisure activities for pupils attending the school but it will also include things like break times, school meal provision, after-school clubs provided by parent associations, school trips and childcare provided by the school. It is impractical to list every aspect of school life in the Bill. We must not forget that new initiatives or activities like breakfast clubs, for example, which were not at all widespread five years ago, are always likely to appear. Where there are grey areas, we want the flexibility to be able to describe in regulations what services are and are not caught by the new duties so that schools and LEAs are always clear. The proposed amendment would not help because it would be inflexible and it would not have the same degree of clarity.

    I have some sympathy with the intention behind Amendment No. 162, though not with the amendment itself. I understand the wish to provide clarity and certainty about whether particular services provided wholly or mainly for students are covered by the duties in this clause. Indeed, it is precisely in order to provide such clarity about which services to students are covered by these duties that the Secretary of State has given the powers under subsection (12) of this clause to make regulations to set out whether particular services are covered. Incidentally, it is the Secretary of State for Education and Employment because this is not a devolved matter; it is a reserved matter.

    Such regulations are the most flexible and comprehensive way of defining student services, given the obvious complexity and variety of services provided for students and the changing way in which education and training are delivered.

    The noble Earl's amendment seeks to remove that regulatory power and to give examples of student services on the face of the Bill. I have no difficulty with the examples given; they are taken from the examples given in the Explanatory Notes. But Explanatory Notes do not disappear once a Bill is enacted; they remain and are available for people to read as and when.

    Far from providing more clarity and certainty than regulations, examples of this kind on the face of the Bill would leave it open to interpretation whether particular services, other than the specific examples mentioned, are or are not covered by the duties. With a power to make regulations, the Secretary of State will be able to clarify the extent to which a wide range of services to students—for example, career or welfare services—are student services covered by the duties in this clause, and will be able to react to any future difficulties which occur in interpreting whether a particular service falls within the definition on the face of the Bill.

    Amendments Nos. 157 and 180 deal with the definition of disability. For the purposes of this Bill, the definitions of disability and of a disabled person are those used in Section 1 of the DDA. We intend to keep this definition of disability. Our clear intention, on which we have consulted, is to extend the DDA to cover education, and we believe that has the considerable benefit of clarity.

    The DDA defines a disabled person as someone who:
    "has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities".
    Schedule 1 of the DDA regulations and statutory guidance expand on and clarify the definition. People who have had a disability, within the definition, are also protected from discrimination even if they have since recovered. Obviously any child or student meeting the definition will be protected by the Bill. Retaining the DDA definition of disability also provides consistency throughout someone's life.

    The definition of disability already in the DDA has worked very well. However, the Disability Rights Task Force reviewed the definition and in its report, From Exclusion to Inclusion, made some recommendations about legislative changes to it. Two would involve covering people with cancer or HIV at an earlier stage in their illness. A further one recommended that people who are certified as being blind or partially sighted should be deemed to meet the definition because the task force found that some people with visual impairment were experiencing difficulties at tribunals in proving that they were disabled.

    Finally, the task force made some recommendations for reviewing the definition. It proposed that aspects of the definition should be reviewed to ensure that there was appropriate coverage of people with mental health conditions and that there were no difficulties with the restriction to mental illnesses being clinically well-recognised ones. It recommended that the exclusion of particular conditions should continue for the time being but be reviewed by the Disability Rights Commission. And it proposed that the definition be amended to bring in a range of conditions which can have severe but short-term effects; for instance heart attacks and depression, although they are covered if long-term. The task force suggested that the wider implications of the proposal needed to be explored. The Minister for the disabled announced in the other place on 20th November that we would respond to the task force report around the end of February. That response will cover the recommendations that I have just outlined. The DRC has a statutory duty to keep the working of the DDA under review and has decided to adopt all of the task force's recommendations. Like other equality commissions, the DRC can make proposals and give advice to Ministers on proposed changes to the law.

    Having heard my reassurances, I hope that the noble Earl, Lord Mar and Kellie, is able to withdraw the amendment.

    5.15 p.m.

    May I probe the Minister further on Section 28A(3)? She said that there would be regulations to cover the detail, but I should be interested to know in which services, not regarded as education or associated services, the Government think that discrimination may occur. The Minister spoke earlier about cricket as an example of an activity in which a disabled person clearly might not be able to participate. Rolf Harris addressed the problem a long time ago in "Jake the Peg". Many disabled people, especially those in wheelchairs, would be a great deal better at cricket than I would be—and I was made to play the game. With a little effort, it is surely possible to integrate disabled people into a lot of sports that some prejudiced sports masters might not think appropriate. I would be most concerned if those words in subsection (3) were to be interpreted widely I would like to know what the Government think about that.

    There is a strong movement on cricket for the blind. They play very successfully with an audible ball.

    Sport will be covered as a service. I entirely agree with what both noble Lords have said. Many disabled people can participate in a wide range of sports and are probably better at them than I would be, just as they may be better at cricket than the noble Lord, Lord Lucas. One only has to see the extraordinary success achieved by disabled people in the Paralympics in Sydney. I hope the noble Lord, Lord Lucas, is reassured on that point.

    Yes, but I should still be grateful if the noble Baroness could give me some examples of what services the Government think might not to be regarded, for the purposes of subsection (3), as being education or associated services, although I accept that she cannot give me examples now.

    I thank the Minister for clarifying the issues raised in my probing amendments. I note that the regulations are yet to be published, so we have to await that definition. I also take the point that my attempt to define what school and college life revolve around was not sufficiently inclusive. The noble Baroness spoke about a wider group of activities, which was highly satisfactory.

    I attempted a definition in Amendments Nos. 157 and 180. They refer to a
    "person with physical, mental, emotional or psychological disability".
    Section 1 of the DDA, which is the ruling definition, refers only to a person with physical or mental, rather than emotional or psychological disability. That leaves us unclear about the position of people with behavioural difficulties or pupils such as those who attend the school run by my noble friend Baroness Linklater of Butterstone for educationally fragile children. I am not yet clear whether they are included in the definition.

    I thank the Minister, and beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendment No. 95 not moved.]

    moved Amendment No. 96:

    Clause 10, page 9, line 20, at end insert—
    ("( ) In section 1 of the 1995 Act (meaning of "disability" and "disabled person"), after subsection (2) insert—
    "(3) For the purposes of discrimination under this section, any child having a statement of special educational needs shall be regarded as disabled."").

    The noble Lord said: I apologise to the Committee for having misdrafted the amendment, no doubt in many ways, but particularly the words "this section", given that it refers to a different section of the Bill. What I mean is Chapter 1, Part II.

    The objective of the amendment is to make it simpler for schools to know who they are dealing with when it comes to a matter of discrimination. Anyone who falls within the Disability Discrimination Act 1995 is likely to have a statement. Schools will know who has a statement, but the definition under the Disability Discrimination Act 1995 is feather-edged. It is difficult to know exactly who they are talking about, and the school may not know whether a person falls within that Act.

    It would be simpler from a school's point of view if the child was statemented. It does not exclude other pupils from coming within the Act, but it makes the prima facie understanding by the school of who is disabled and who is not much easier. I beg to move.

    To include all children with statements within the definition of disabled persons under the 1995 Act would not be consistent with the intentions of the learning disability provisions in the Bill. Although many children with statements are disabled, some are not, and will make sufficient progress with extra help, after a time, not to require a statement.

    A person has a disability if he has a mental or physical impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. A special educational need is not necessarily long-term, and it may be remediable with the right help. SEN legislation and disability legislation serve different purposes. The first is about provision to meet special educational needs, and the second is about preventing discrimination on the grounds of disability.

    In the past, a person who has had a disability is entitled to protection under the DDA, even if that person is no longer disabled. If this amendment were accepted, a child who had been statemented, even for a brief period, would be protected by the DDA for the rest of his or her life.

    Furthermore, schools are already very familiar with the SEN framework in applying the new disability duties. It is more consistent and practical to work alongside that framework rather than to try to shift the boundaries. We want to avoid a school having to spend time deciding which piece of legislation applies to a child's needs before taking action. Similarly, the purposes of the disability provisions in the Bill and the SEN provisions in the Education Act are different. The former seek to ensure that disabled people are not discriminated against throughout their life, as children and as adults, while the latter seek to provide additional help to enable children with learning difficulties to learn and progress while they are at school.

    The Disability Rights Commission is charged with producing codes of practice on the new disability duties. We will invite the DRC, in drawing up the codes, to set the new schools duties in the context of the SEN framework, where that is appropriate.

    The present definitions of SEN and disability are different but complementary frameworks. They underpin and allow a consistency of approach both to providing support for children with learning difficulties and preventing discrimination on grounds of ability.

    In the light of that explanation, I hope that the noble Lord, Lord Lucas, feels able to withdraw his amendment.

    I shall read what the Minister said. I suspect I shall be satisfied by it. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Clause 10 agreed to.

    Clause 11 [ Meaning of "discrimination"]

    moved Amendment No. 97:

    Clause 11, page 9, line 38, after ("question") insert ("having taken steps to inform itself as fully as possible about any disabilities and identified special needs of pupils and prospective pupils").

    The noble Lord said: The amendments in this group seek to place a duty on schools, colleges and other places of higher education to take steps to find out whether disabled people are applying to join their courses. They seek to tackle the opt-out within the Bill which effectively says that if they do not have that information, they are not discriminating.

    The case of schools is much more complicated because they have to deal with parents. Normally parents are a driving force for dealing with disability. Their efforts are usually backed up by voluntary groups and educational psychologists.

    I seek to place some of the emphasis in this regard on the education system. My remarks must not be taken out of context. I am not saying that that should be done with current resources. A later amendment in the Bill seeks to get schools to undertake that duty. For schools to say that they simply are not aware of a child's difficulties is not good enough. Huge delays in offering adequate provision can arise as a result of that. We have already discussed the matter of earlier recognition of problems. If we wait for the parent to discover that something is wrong—that is the worst case scenario because many parents react to information given by teachers—the kind of delays I have mentioned will occur. As we have already stated, if somebody has a minor difficulty such as not terribly acute dyslexia, or an eye problem, and it is discovered early enough, most of the problems will disappear. Indeed, the need for statementing may well disappear.

    I shall be very surprised if the Minister does not mention colleges and places of higher education in this context. We envisage some form of enrolment procedure where there is a box to be ticked if you have a disability, and possibly a means of describing what that disability is. Colleges would then be unable to say, "We did not know you could not do such and such". Thus the problem we are discussing would be avoided. At the moment the Bill refers to institutions not knowing the relevant facts. But if they do not ask, they will not know. I suggest that we could remove that difficulty by having an application form with a little box to be ticked and a place for disclosure of information.

    I hope that the Minister will be able to respond kindly to these amendments. The noble Lord, Lord Ashley, has tabled amendments with a similar purpose. I am not at all fussy about the words here. If the noble Lord's words are thought to deal with the problem in a better way, I should be more than happy if they were accepted. I beg to move.

    5.30 p.m.

    I rise on behalf of my noble friend Lord Ashley who is unwell and unable to be with us this afternoon, to move and speak to Amendments Nos. 98, 99 and 111 in this group, standing in his name. I am sure my noble friend will soon be returning to our debates on the Bill with all his customary energy, sincerity and skill; and I know noble Lords in all parts of the Committee will join me in sending him our every good wish.

    In regard to Amendments Nos. 98 and 99 it will he seen that, according to Clause 26 as currently drafted, there can be no discrimination if the authority did not know, and could not reasonably have been expected to know, that a child is disabled. Since we all know that "reasonably" can have a thousand and one interpretations, this part of the clause provides an escape route for local authorities that wish to do the minimum. They merely have to take no steps to ensure awareness by the authority.

    My noble friend's amendments would help t o ensure that all authorities put systems in place that will make them aware of any discrimination. It is essential that every authority or school be made responsible for having clear procedures for encouraging disclosure. It is then up to the parents to decide whether or not to tell the school about their child's disability. The authority needs to be proactive, not reactive.

    I know that the special educational needs code of practice says schools should produce policies that describe their SEN policy and have admission procedures that will identify children with SEN. But there are three objections. First, it does not cover all children; secondly, it does not cover all schools, because independent schools are excluded; and thirdly, it is not legally binding. I am glad to commend these amendments to the Committee.

    I turn now to Amendment No. 111. We have already dealt with the purpose and principles of this amendment, namely that the child should have a right to participate in issues relevant to his or her future. Amendment No.111 relates specifically to the child's wishes for a disability to be kept confidential and that, too, deserves our support. I beg to move.

    I should like to ask a simple question: how can a responsible body be deemed to be a responsible body when it has not even bothered to find out whether a disabled person is disabled?

    I, too, lend my support. Young people applying for further and higher education are at a particularly sensitive time in their life for talking openly about disabilities—or, rather, not talking about them, which is probably more the order of the day. Providing an extra tick box on a form would not cost the institutions much and I expect that they would willingly accept the obligation to allow applicants to be open. The form ought also to include an invitation to the potential student to discuss any disabilities or provision that they may require when they get to university. Our further and higher education colleges are doing an enormous amount to help young people with disabilities to be accepted into their institutions. That serves everybody's interests and I am happy to put it on record, as I have done before. We are dealing with another aspect of that. They need to he proactive in soliciting information from potential students about any disabilities that they have and whether those disabilities would require any particular provision and they need to be sensitive about that information. I support the amendments.

    I cannot add any useful arguments, but I would like to add very strong support to the object of the amendments.

    I have great sympathy with the intentions behind the amendments. First, I shall address all the amendments except Amendment No. 111, spoken to by my noble friend Lord Morris of Manchester in the stead of the noble Lord, Lord Ashley. The other amendments are all concerned with ensuring that schools and post-16 institutions have taken steps or have policies and structures in place to find out whether a student or a pupil has a disability. I have the greatest sympathy with the intent behind the amendments.

    The duty on schools and post-16 institutions to make reasonable adjustments is anticipatory. A school or post-16 institution cannot, in general, wait until a disabled pupil or student arrives before making an adjustment. Most schools, colleges and universities should have—indeed, most already do have—procedures in place to ascertain whether or not a pupil or student, or potential pupil or student, has any disabilities or special requirements. For many institutions that will be part of the information requested in their listings procedure. It is good practice, although I do not know how many institutions use the recommendation of the noble Lord, Lord Addington, of the box being ticked by the intending student.

    Schools and post-16 institutions will have to anticipate and plan ahead. They will need to review their policies, practices and procedures, including those relating to admissions, as a matter of course to ensure that they do not discriminate against potential disabled pupils or students by placing them at a substantial disadvantage. We will thereby ensure that good practice becomes standard practice throughout our educational institutions.

    Clauses 11 and 26 make provision for responsible bodies not to be liable in respect of the duty to make reasonable adjustments where they do not know or could not reasonably be expected to know of a person's disability. An institution certainly would not be able to rely on a defence that it could not know of a student's disability if it had not done what it could be reasonably expected to do in order to find out whether that person had a disability.

    Amendment No. 97 includes the words,
    "and identified special needs of pupils and prospective pupils".
    We do not intend to extend the disability duties to cover children with special educational needs who are not disabled within the DDA definition. There is a whole framework surrounding the identification and assessment of children with special educational needs. The revised SEN code of practice will be published later this year. There is also a requirement in the maintained sector on LEAs and governing bodies to ensure that a child's needs are made known to all who are likely to teach him or her.

    I turn to Amendment No. 111 in the name of my noble friend Lord Ashley and spoken to by my noble friend Lord Morris. This would place a duty on schools to take account of a disabled child's wishes to have his disability treated as confidential in determining whether to make a reasonable adjustment. I understand that the intention behind the amendment is to seek a formal voice for the child and we have already had substantial discussion in the course of the SEN framework of the Bill on the role of the child.

    I know that what my noble friend Lord Ashley intends is that the proposed duty would only bite having sensible regard to the child's age and maturity. The problem is: who makes the decision about the child's age and maturity? The school would have to make that decision. What, then, if there is a difference of opinion between the school and the parents or between the parents and the child? It cannot be sensible to add potential layers of conflict to the situation.

    We believe that it is appropriate that the child's view should be taken into account. But in the inevitable hierarchy of rights of where the final responsibility lies, the parents' voice surely must be paramount. Children may rightfully have views about their disability and about keeping it confidential, and of course they should be taken into account by the school. In some cases it will only be after talking to the disabled child that a school will be aware of what adjustments need to be made.

    The most effective provision for a disabled child will be the result of a partnership between the school, the parents and the child. However, it is appropriate to place schools under a legal duty to take account of the parents' view in respect of keeping the child's disability confidential. It is an established feature of our school system that the parents act on behalf of their children. This ranges from the choice of school to appeal against non-admission or an exclusion from the school as well as giving consent to certain activities, school trips and so on. It is right that the position of the parents should be the same in this case. Many children may lack the capacity to make the informed decisions that are required.

    I hope, therefore, that Members of the Committee will recognise that the Government agree with the intentions of Amendments Nos. 97, 98, 163, 164, 165 and 166. My point is that they are unnecessary because the Bill already covers the intentions behind them. These reassurances and the comments that I have made in respect of Amendment No. 111 should enable noble Lords to withdraw the amendments.

    I have tried desperately not to be political in this debate. It is an issue that goes across all parties. However, after the debate yesterday and having asked my Question today, for the Minister to say that many children lack the capacity to make such a request for confidentiality fits ill with the fact that the same children of the same age will be asked to request confidentiality to receive the morning-after pill.

    Clauses 3 and 4 are a "cop out". They are weasel words. Why could it not be kept simple by just striking out those two clauses? The meaning of discrimination is the whole purpose of Clause 11 and subsections (3) and (4) seem to negate that whole purpose.

    The noble Lord, Lord Rix, is right. If the Government wish to include these sections, that is reasonable, particularly with regard to colleges. I shall have to read more carefully what the noble Lord said as regards schools. I agree that we have obligations. The Bill states that,

    "it did not know and could not reasonably have been expected to know, that he was disabled".
    We should get rid of that and indicate that that provision has gone. The Minister said that the Government are required to have some provision to deal with this. This is a total nonsense; we are chasing our tails when we can give clarity. The only people who stand to benefit from these subsections are lawyers. If we are to be a job creation scheme for lawyers, I suggest that we have another Bill for that purpose. I cannot see that the provision has any function here. We shall have to return to this issue at a later date. However, at this point I beg leave to withdraw this amendment.

    I thank my noble friend for his response to Amendments Nos. 98, 99 and 111. I assure him that my noble friend Lord Ashley and I will look at it very carefully. I know that the Minister will not be surprised to see us returning to these issues on Report. Meanwhile I reserve my noble friend Lord Ashley's position and will not press the amendments at this stage.

    Before my noble friend withdraws the amendment, may I also encourage the noble Lord, Lord Morris of Manchester, and his noble friend to pursue Amendment No. 111? I was not really impressed by the Minister's answer. All that is required is that the authority have regard to the confidentiality request. I cannot see why they do not have due regard to the confidentiality request made by a disabled person under whatever circumstances. They can make their own decisions as to what weight to put on it. It seems to me absolutely right that they should have to take notice of it, and due notice according to the particular circumstances involved. We cannot be more specific than that. Clearly the child should have a right to request confidentiality.

    5.45 p.m.

    I am grateful to the noble Lord, Lord Lucas, as I know my noble friend Lord Ashley will be when he reads the Official Report.

    Amendment, by leave, withdrawn.

    [ Amendments Nos. 98 and 99 not moved.]

    Clause 11 agreed to.

    Clause 12 [ Disabled pupils not to be substantially disadvantaged]:

    moved Amendment No. 100:

    Clause 12, page 10, line 28, leave out ("substantial").

    The noble Baroness said: Clause 12 requires the responsible body of a school—by which we take it to mean the head teacher and the governing body—to ensure that discrimination of a disabled person does not take place. However, it goes on to specify the two circumstances where it should not take place; first, in the admissions procedure to the school; and. secondly, within the school once the pupil has been admitted. In both those subsections the clause specifies that the disabled persons,

    "are not placed at a substantial disadvantage in comparison with persons who are not disabled".

    My concern here is with the word "substantial". I understand that once a disabled person is a pupil at the school there can be a measure of disadvantage compared with other pupils—and that is true—even with the best will in the world to keep such disadvantage to a minimum. The disabled pupil might, for example, be physically slower to get around the school; might find certain facilities that we all take for granted usable but not totally convenient; and so forth. It is fair enough, therefore, for the clause to make unlawful substantial disadvantage for the pupil once in the school. Such a qualification concedes that there may always be some disadvantage, even if such disadvantage is kept to a minimum. Where I find the qualification "substantial" unacceptable is in the first subsection; that relating to the arrangements for admission to the school.

    The school will invite applications and will' publish its admissions criteria. If it is an academically selective school it will apply some form of selection test; if it seeks other abilities or skills, such as music or drama or sport, it will set its admissions criteria accordingly. If the school is over-subscribed, it will have to apply some kind of pre-published selection process such as siblings of the pupils at the school and then, probably, how far from the school a child lives.

    In none of that should the disabled applicant to the school be treated any differently from the rest of the applicants. Thus it is that I say there should be no disadvantage to the disabled person in comparison with other persons when applying for a place at the school. Hence my amendment drops the word "substantial" from subsection (1)(a)—the one concerning admissions to the school. Thus it leaves the wording that there should be no disadvantage.

    If the Government argue that the word "substantial" should remain and my removal of it is not acceptable, then another form of words I should like to propose at the next stage of the Bill is "reasonably avoidable". A view needs to be taken which can be tested as to whether the reason for discriminating against a pupil could be avoidable in reasonable circumstances. I wait to hear what the Minister says in response to my amendment. I can also say that Amendment No. 167, to which I also speak, applies to Clause 27, but it is the same argument. I beg to move.

    I support my noble friend's amendment most strongly. It is absolutely right that there should in principle be no discrimination in the provision arrangements. There is little excuse for it. Certainly my noble friend's back-up wording would seem to cover any possible faults. It would give me particular pleasure to see the word "substantial" taken out because of the amount of time I spent last year trying to get the Government to put it into the Freedom of Information Bill.

    Looking at the semantics of this amendment, if the Government insist on leaving in a word such as "substantial", I wrote down two words that might do almost as well: one is "unjustifiable"; the other is "avoidable", which might suit matters better. The requirement would then be that disabled persons should not be placed at an avoidable or unjustifiable disadvantage. I wonder whether those two words might be more suitable.

    I do not know whether the noble Lord is addressing that question to me, but I would welcome a debate about the important issue of negotiating an appropriate word. The point I want to make most strongly is that "substantial" is the wrong word here.

    The Bill places a duty on schools and post-16 institutions to make reasonable adjustments if a disabled pupil or student is placed at a substantial disadvantage.

    The amendment would remove "substantial" from the trigger for reasonable adjustments to admission arrangements. It would place schools and post-16 institutions under a duty to make reasonable adjustments to admission arrangements whenever a disabled pupil or student faced a disadvantage, however trivial. We are not legislating to overcome mere slight disadvantage; we are legislating to ensure that schools, colleges and universities help disabled pupils and students where there are real barriers to accessing education. "Substantial" is a well understood term and the Disability Rights Task Force recommended that it should be the trigger for the reasonable adjustment duty on schools and post-16 institutions.

    The amendment would create one trigger for reasonable adjustments to admission arrangements and a different trigger for reasonable adjustments to the educational and other activities while a disabled pupil or student was attending school or a post-16 institution. The amendment would not cover adult education at all.

    The amendment would create a great deal of confusion for schools, colleges and universities operating under the reasonable adjustment duty. It would also set up a hierarchical system within the reasonable adjustment duty. I am sure that noble Lords understand that we want to keep a consistent test across the board.

    It may be helpful if I set the substantial disadvantage trigger in context. The starting point for the Bill was the precedent set by the DDA. We have taken the best of the DDA and applied it to the provision of education. We decided to adopt the substantial disadvantage trigger for the reasonable adjustment duty placed on employers under Part II of the DDA because it was a relatively low trigger for adjustments to be made. That leads to a strong reasonable adjustment duty on schools and post-16 institutions. It will also require schools and post-16 institutions to act in an inclusive way, since they will need to compare the experience of disabled children and students with that of their non-disabled peers in deciding what steps they need to take.

    In contrast, the duty to make reasonable adjustments in Part III of the DDA is triggered only if disabled people would find it "impossible or unreasonably difficult" to access the service. There is no comparison with others accessing the service. The disability lobby prefers the "substantial disadvantage" test to the "impossible or unreasonably difficult" test in Part III of the DDA for providers of goods and services.

    Under Part II of the DDA, a substantial disadvantage is one that is more than minor or trivial. "Substantial" is not defined in the DDA, but in the code of practice issued under it. The term "substantial" is also used in other parts of the DDA, for example in relation to the definition of disability, and in each case it means more than minor or trivial. We expect the DRC to reflect that and to provide further guidance in the codes of practice that they will produce in respect of these new duties. Research monitoring Part II of the DDA has found that disabled people, employers and tribunals have no difficulties with this test. It appears to be working well and is widely understood.

    Removing the word "substantial" in the trigger would require schools and further and higher education institutions to make reasonable adjustments however slight the disadvantage. Even if a disabled person was facing only trivial disadvantage, a school or institution would have to do something about it.

    People face many sorts of disadvantages every day. Fortunately, most of them are insignificant and they arise from the sort of problems that any of us face as we go through life. They are minor disadvantages that are part and parcel of everyday life for us all and we put up with them. We are not legislating to overcome mere inconveniences. We are legislating to make sure that schools, colleges and universities help disabled pupils and students where there are real barriers to their taking part in education; real difficulties beyond what any of us might be expected to put up with. Otherwise there would be no end to the potential for dispute and challenge. Schools and colleges could find themselves dissipating their resources to deal with a myriad of minor difficulties instead of focusing on the real problems that we believe they ought to be addressing.

    We believe we have the balance right and that the Bill will ensure that help is available for disabled pupils and students where and when there really is a need for it. I hope therefore that, having heard what I said, the noble Baroness will feel able to withdraw the amendment.

    I find it difficult to imagine what kind of discrimination would be trivial or reasonable in the case of admission arrangements. We are talking about a tiny function. Can the Minister give me some examples of what might be a trivial piece of discrimination which should be disregarded but is nonetheless reasonable as part of admission arrangements?

    Schools have some strange admission arrangements. I know of one private school which requires pupils to stand on one leg for admission—it knocks the dyslexics out of the running; they find it hard to do. I would not find that reasonable. I believe that to be discrimination. When it comes to admission, I cannot think of anything, however small, that should be in admission arrangements that would disadvantage disabled people. I cannot see that there is anything in that tiny area which it is difficult for a school to adjust so that disabled people are not discriminated against. I would love some practical examples of the sorts of thing that schools should be allowed to do which, if we took "substantial" out, they would not be allowed to do.

    I propose that setting an examination on a particular day of the week to admit a child into a selective school could be defined as a trivial discrimination against a child who happens on that particular day of the week to attend some kind of programme that might be in some other way supporting his or her education and therefore helping the child who has some kind of minor disability. I am thinking off the top of my head but that is the sort of thing whereby we could, if we were to take this phrase out, find people who in a vexatious way decide to make trouble.

    I am not sure what to make of that particular example. It seems to me that, if in every other respect the disabled person or the person with disability had all that it took for entry into a school, I suspect it would be reasonable, under the Bill, to find some way of accommodating them in a way that would allow them to take up a proper place at the school, the day of the week being a proper adjustment.

    I am sorry that the Minister in her response, which I suspect is a seriously prepared one, did not respond to the kind of negotiating stance that we are all in to find words that are appropriate. As my noble friend said, we are talking about a narrow area of function in the Bill and "substantial" seemed to leap off the page as being the wrong word. I should like to think more about it and perhaps Members of the Committee will do likewise. I hope that, in the meantime, the Minister is able to reflect on some of the things that we have said. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    6 p.m.

    moved Amendment No. 101:

    Clause 12, page 10, leave out lines 36 to 40.

    The noble Lord said: I rise to move Amendment No. 101 in the name of my noble friend Lord Ashley of Stoke which, it will come as no surprise to the Committee, has my full support.

    As currently drafted, the Bill specifically states that schools do not have to remove or alter physical features, nor to provide auxiliary aids or services. This amendment deletes that specific statement. It does not mean there would be enforceable rights to auxiliary aids, services and changes of physical features. What it does mean is that these matters would be included in the "reasonable adjustments" duty on schools.

    Appropriate auxiliary aids and services would be essential for some children for without them the education of the disabled child could come to a full stop. There is no point in changing physical features, however, if a child cannot follow what goes on. Nor is there any point in providing excellent communication facilities if a child cannot get to the rooms where they are provided. In all such cases, education is denied.

    This amendment will, in particular, enhance protection for disabled pupils without statements because they have no legally enforceable rights of redress against the school's failure to provide such extra help.

    It may be argued that the SEN system already makes provision in this important area for disabled children. It does not. Only 2 per cent of children with SEN get statements and, even when they do, evidence from the RNIB shows that large numbers do not receive adequate support. One in three children with significant problems do not get school test and examination papers in their preferred format. In other words, they are put at a disadvantage and the handicapping effects of their disabilities are increased, not diminished.

    It is accepted that schools cannot be expected to provide all that is required, as some of the child's needs can be the responsibility of the NHS or the local social services department. However, the code of practice could highlight who should provide what and where responsibilities and duties lie.

    The object of this amendment is to try to ensure that disabled children of the future do not suffer, as they do now, from huge inequalities and inconsistencies in provision across the country. I beg to move.

    It might be helpful if I speak to Amendment No. 135A, which is coupled with Amendment No. 101.

    In the previous clauses, the obligation has been placed upon local education authorities, and upon schools, to provide facilities and alterations in order to give access to, and to accommodate generally, pupils who have disabilities.

    The schools and the authorities have to prepare annual plans as to how they are going to do so, and they have to implement those plans. As I have already said in a previous debate, I fail to see how they can possibly do that without knowing that they have the funds to do it.

    However, Clause 15 seems to be suggesting that there is no obligation upon the local authority to adapt the school premises, or to provide auxiliary aids or services for the benefit of children with disabilities. Subsection (3) on page 15 says that these provisions do not require the authority to remove or alter a physical feature, or to provide auxiliary aids or services. Indeed, the noble Baroness said that herself this afternoon on an earlier amendment. My amendment adds a third provision, which I know will be a sensitive one; namely, that it does not require such provision by the authority if to do so would incur unreasonable expenditure.

    If, as it seems, Clause 15 modifies the absolute demands upon local authorities and schools imposed by the previous clauses to become demands that have to be reasonable and practicable, that may be a sensible approach. I hope that the Minister can explain this apparent contradiction between Clause 15 and the earlier clauses. I am attempting to square the circle here, by emphasising yet again that, unless additional staff and services are added to mainstream schools, and possibly some physical adaptation as well, there is no way that children with disabilities—and for that matter, children with special educational needs—can be properly accommodated in mainstream schools to fulfil all the aims and objectives of the Bill.

    I am afraid this takes us back to many of our earlier debates. I speak in support of the noble Lord, Lord Morris.

    When considering this legislation, I hope there is an over-arching principle which is that there should be choice between special facilities and integration. If there were to be no compulsion available to procure physical alterations or to provide auxiliary aids and services, then there may be a denial of choice. Exclusion from some schools would ensue, by reason of disability. If schools are to be allowed to fail to provide facilities such as IT, information in alternative formats, specialist teaching, a differentiated curriculum, mobility and independence training, access to specialist support services, then inclusion will often remain a mere pipe dream.

    There will be a need for changes to physical features such as loop systems, signage or wheelchair access. Without these changes it is likely that the school will fail to provide for children with disabilities and, to cap it all, there will be little redress against such a failure to provide. This lack of enforceable rights will reinforce inequality of provision and undermine the Bill's intent.

    The Bill presumably relies on the availability of another, adapted school. This may work in our five Scottish cities but not in rural and remote Scotland nor in the four island groups. In these areas there is often only one school. The proffered solution will be to live away from home, as usual. The explanatory notes state that the record of needs,
    "already provides for the identification and provision of educational aids and adaptations for pupils in school".
    The consortium, Children in Scotland, has pointed out to me that this is insufficient justification to allow for the exclusion of physical adaptations, for two reasons. First, records of need only provide for identification and provision of aids but not adaptations. Secondly, the current assessment and recording system in Scotland does not always work well and is soon to be consulted upon by the Scottish Executive. There is a form of postcode prescribing across Scotland which results in considerable diversity in criteria for recording.

    It seems that ENQUIRE, the national advice service for special educational needs in Scotland, in its first year, found that 30 per cent of all enquiries were concerned with records of needs and, of that 30 per cent, a third concerned the level of service provided for a child or young person.

    This amendment has merit in Scotland and, no doubt, elsewhere.

    When I was a member of the Arts Council and Chairman of the Drama Panel—less than 10 years ago—the Arts Council moved from 105 Piccadilly to 22 Great Peter Street. At the time we moved, the architects were aware that I was chairing the Arts Council Monitoring Committee on Arts and Disability. We pressed them most strongly to put into the building the necessary adjustments for members of my committee, all of whom were disabled in one way or another. Unfortunately, the architects failed to take note of our request and we moved in across the road—just off Millbank. Eventually, it cost the Arts Council a further £130,000 to put in the very facilities that should have been provided to begin with. This very probably applies to many schools and other places of education. If all adjustments are not made at the time of such alterations, the costs will be prohibitive.

    The argument is constantly being used about theatres: that it is impossible to provide access for disabled people in one form or another because the buildings are either historic or listed. Gradually, however, people are beginning to realise that quite simple adjustments can make life possible for people with disabilities of all kinds. Architects are aware of this. This clause, referring to the removal or alteration of a physical feature is probably a big stumbling block. It could refer to virtually anything—a pillar that did not hold up a roof or some steps that were there—because one was not prepared to alter them. When designed, the Barbican had stairs down to the bar off the concert hall. In the end, they had to put in a ramp, which gives the feeling of running up a one-in-four hill leading down from the auditorium to the bar itself. Frankly, I can imagine it could be extremely dangerous in a wheelchair when one could freewheel into all the people drinking at the bar!

    Just to say that to have to "remove or alter a physical feature" does not require a responsible body to make admission possible seems a very weak excuse, particularly in view of the "reasonable requirements" stipulated by the DDA and the Disability Rights Commission.

    I, too, wish to give strongest support to the amendment in the name of my noble friend Lord Ashley of Stoke, which would rectify what I perceive as one of the main weaknesses of the Bill. If we do not ensure that disabled pupils have enforceable rights to auxiliary aids and services and that the necessary alterations to the physical features of a school are made, discrimination against disabled children in education will continue largely unaffected. Schools and LEAs will continue to use those requirements as an excuse to hide their prejudice against disabled children and the main purpose of the Bill—to strengthen inclusion and put an end to discrimination in education—will be undermined.

    How can disabled pupils and disabled prospective students not be placed at a substantial disadvantage compared with non-disabled children if the exemption clause is not removed? At the very least, a time scale should be placed on its removal. Disabled children will continue to suffer rejection, frustration and clear discrimination as they make the transitions through their school lives.

    The Explanatory Notes to the Bill make it clear that the exemption for auxiliary aids and services and changes to physical features relies on the fact that the 1996 Act makes provision for those through the statementing procedure. However, the statementing process can be stressful, time-consuming and wasteful of resources. In their 1997 Green Paper, the Government referred to the excessive prominence of statements of need in providing children with appropriate support and to their unwanted side effects. The exemption clause places undue pressure on families to use the statementing process to gain the necessary support for their child. Research by RNIB Scotland, which has already been referred to, shows that almost a third of pupils in Scotland with significant vision impairment are going through the education system with no statement. Some 8 per cent of pupils had to wait two years for their statement and one in 10 parents knew nothing about a statement of need.

    Most importantly, the amendment would address the needs of the thousands of disabled pupils who are unable to obtain statements. They currently have no legally enforceable right of redress against a school's failure to provide the help they need. Unless the clause is removed, those now of school age will see scant change as a result of the Bill.

    The Disability Rights Commission has argued that by 2004, the education service should be required to comply with the same duties to improve disability access to buildings and premises as will apply to other service providers under the DDA. If schools are under a duty to make adjustments to premises for disabled staff and to consider changing physical features for members of the public attending a function in a school, why should disabled pupils continue to suffer discrimination as a result of this exemption clause?

    6.15 pm

    I also warmly support the amendment. However, I take a slightly different view of statements from my noble friend, as I shall call her, Baroness Wilkins, who has made a powerful speech. I believe that they are necessary at the moment and they need to be good statements. I understand that the Disability Rights Task Force recommended that the exemption was unnecessary because of the protection afforded by the statement. Yesterday we had much talk about bland, meaningless and woolly statements. It is welcome that the provision will be specified and not set out but, as the noble Baroness, Lady Blatch, highlighted, we understand that at times it will be quantified as necessary. There is therefore a question mark about the strength of the term, "where necessary" as well. So the protection of the statement is not that huge at the moment.

    I should like to cite IPSEA again and declare in the same breath that I am a member of that organisation. It stated,
    "After nearly 20 years of advising parents and carers of children with special educational needs, IPSEA has concluded that there is a need for an enforcement agency to ensure that LEAs fulfil their legal duties towards children with special educational needs rather than leave it to individual parents and carers to fight for themselves, which means time, energy and money which are all in short supply for the disabled family, or relying on charities like IPSEA to get the appropriate provision which is their legal right".
    The extension of the DDA to cover education is hugely welcome but it will not help in this case. As everyone has said, it excludes the denial of aids and services as a ground for discrimination and deprives parents of the potential support of the Disability Rights Commission, which would be that enforcement agency, in their struggle to secure the provision to which their children are entitled under the law. Therefore, I strongly support this amendment which would strengthen their rights and give them that support.

    I add one trivial point. I am puzzled by the use of the word "that" at the beginning of subsection (2): I have never seen it used in that way before. The words I would expect to be there are, "subsection (1)". "That" seems very inexact and indefinite and, while I believe it means subsection (1), it does not say "subsection (1)". Can the noble Baroness produce any example where "that" has been used like that before?

    Perhaps I may correct an impression I might have given earlier. I was complaining about statements of need; that was not my intention. My intention was to show that it is often time-consuming and frustrating to obtain a good statement and that those statements should not need to be relied on to obtain the correct resources for a disabled child.

    Amendment No. 101 seeks to remove from Clause 12 the exception to the reasonable adjustments duty for adjustments to physical features and the provision of auxiliary aids and services. The Government want to remove barriers that disabled people face in accessing education and we believe that the Bill offers an effective means of achieving this without placing an additional duty on schools to provide auxiliary aids and services and make adjustments to physical features. Aids and services are often already provided through the SEN framework and we believe it is more effective to take a strategic approach to improving physical accessibility to premises and the curriculum. That was the position recommended by the Disability Rights Task Force and we have accepted its recommendation.

    We expect children, whose special educational needs require them to have aids and services, to receive them under the SEN regime. Children with statements of SEN have an enforceable right to the provision specified in their statement, which may include auxiliary aids.

    The issue of auxiliary aids should also be seen within the wider context of the duty on LEAs and schools, under Clauses 13 and 14 of the Bill, to plan systematically to increase physical accessibility to schools by disabled children. In meeting that duty, they will be required to plan and act strategically in order to make both school premises and the curriculum more physically accessible to disabled children. This is not just about lifts and ramps; schools and LEAs will also need to consider providing aids such as specialist furniture, induction loops and improved colour schemes and signs.

    Perhaps this is the point at which I should explain what happens in Scotland.

    A Division has been called in the House and therefore the Committee stands adjourned until 6.30 p.m.

    [ The Sitting was suspended for a Division in the House from 6.20 to 6.30 p.m.]

    When the Division was called I was about to explain that, while in England and Wales, changes to physical features are done strategically through the planning duty, there is of course no such duty in Scotland. Auxiliary aids for specific pupils are done through the SEN framework, or what I think is called the record of needs in Scotland. I thought I should make that clear.

    The DRTF felt that requiring every one of the 25,000 schools to make reasonable physical adjustments was not the most effective method for increasing access for disabled pupils. It favoured more strategic arrangements, with LEAs working in partnership with schools to increase accessibility in their area. It considered that a duty on LEAs and schools to plan to increase access would produce the greatest benefit for all disabled children in an area. We have accepted that recommendation.

    Noble Lords are aware that we are significantly increasing funding for this purpose through the schools access initiative. As I have already told the Committee, over the next three years we will invest £220 million in making school premises more accessible.

    Clause 15 places a residual duty on LEAs. Amendment No. 135A would place a duty on LEAs to make physical adjustments and provide auxiliary aids and services where they would constitute reasonable adjustments, provided the LEA would not incur unreasonable expenditure in doing so. I understand that Clause 15 does not affect the planning duty. The LEA will have to plan to make physical alterations as part of that duty. That would overlap with the SEN framework that provides for auxiliary aids and services for children with special educational needs. As I have explained, we accepted the DRTF recommendations. The noble Lord, Lord Lucas, asked about that in subsection (1). That does mean subsection (1) and we cannot provide any example.

    I hope that my noble friend, Lord Morris of Manchester, feels able to withdraw his amendment and that the noble Baroness, Lady Blatch, will not press her amendment.

    Before the noble Lord, Lord Morris, comes back, could I ask the noble Baroness a question? There is a great deal of confusion, as I suggested when I spoke to Amendment No. 135A. On the one hand, Clause 12 says that LEAs and responsible bodies are not required to,

    "remove or alter physical features (for example. one arising from the design or construction of the school premises)",
    or to,
    "provide auxiliary aids and services".
    On the other hand, they are required to plan for such things. What are schools and colleges to make of the fact that they are not required to do it, but they are required to plan to do it? Can they plan not to make alterations and provide auxiliary aids? That is an extraordinary juxtaposition of two requirements.

    The key here is strategic planning across an LEA or across an area of an LEA where, as the DRTF recommended, it is considered more cost-effective and sensible to work together and plan provision across a range of schools, than to leave every school to make adjustments.

    The noble Baroness has worried me, because I had it in mind that Clauses 13 and 14 were not appropriate for Scotland. Did the noble Baroness say that Clause 12 would not run in Scotland? I think that it will.

    I did not say that Clause 12 does not apply in Scotland—it does. I was simply pointing out that the planning duty does not apply. The auxiliary aids referred to in the amendment are dealt with through the SEN framework or a record of needs in Scotland.

    Clause 13 also seems to be about planning. Will that run in Scotland?

    I was disappointed by the Government's response. My noble friend Lady Blackstone has heard today the very wide-ranging support, some might say acclaim, for the amendment I moved on behalf of my noble friend Lord Ashley. When she has an opportunity to consider again the case we have adduced in support of his amendment, I hope that she will feel able to revise her response. As of now, I feel I can go no further than reserve the position of my noble friend Lord Ashley. He has clearly struck a chord with opinion in all parts of the Committee, and it is with some reluctance that I will not press the amendment this afternoon. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Before calling Amendment No. 102, I must tell the Committee that if it is agreed to, I cannot call Amendment No. 103 due to pre-emption.

    moved Amendment No. 102:

    Clause 12, page 10, line 41, leave out from beginning to end of line 7 on page 11.

    The noble Baroness said: Subsection (3) on page 10 permits the Secretary of State to make regulations at some time in the future as to what steps the governors of a school have or have not to take to ensure that there is no "substantial disadvantage" to the pupil.

    Clause 12 provides for those responsible for a school to ensure that the disabled pupil is not put at a substantial disadvantage. I will not go over the debate we have had on that matter.

    Subsection (3) of that clause allows the Secretary of State to make regulations as to when it is reasonable for a school to have to take steps as may be prescribed by that regulation; steps which it is always reasonable for the school to take; circumstances when it is not reasonable to have to take certain steps; and steps which it would never be reasonable for the school to take.

    This is a very bureaucratic process. Already the Bill is heavily bureaucratic. It seems to assume that those involved in the education of children with special needs, or children with a disability, lack common sense. We do not need yet more regulations. Those involved with these children are more likely to appreciate what measures can or cannot be taken to help them than are parliamentary lawyers framing regulations, no matter how well intentioned those lawyers may be.

    Through both the informal process and through the formal process of statementing and the LEA fulfilling its duties, there will be procedures to test whether a school and indeed, a local authority, is behaving reasonably and fully meeting its obligations under the Bill. I do not believe that this layer of bureaucracy is needed. It is unnecessary and meddlesome. I beg to move.

    If we are to have this clause, I really do not see the function of paragraphs (c) and (d) of subsection (3). There is no way that regulations can anticipate every set of circumstances. The Government can set out good practice, and if they want to do it by regulation rather than by code of practice, they can say this is what they would normally expect people to do and these are the circumstances under which they would normally expect them to react. Someone in Whitehall may think that under paragraph (c) they can specify something which it would probably not be reasonable to do. However, a circumstance turns up in a school a year later and several hundred miles away, where, because of the particular circumstances of the school and child, a certain step would have been the perfect one to take, but the regulations say it does not have to be taken. That seems ridiculous.

    Why are paragraphs (c) and (d) needed? I share the antipathy of my noble friend Lady Blatch towards this subsection as a whole, but if we are to have it, what are paragraphs (c) and (d) there for? Surely they cannot have any function in support of the child; they can only turn to the bad. I do not see that they are of much use to the school either.

    My Amendment No. 103 is grouped here. Perhaps I ought to speak to it now, despite the possible pre-emption.

    This amendment embodies the classic "may/shall" argument, but hopefully it will not run as long as it sometimes does.

    I seek to ensure that regulations will contain measures that a school must implement to comply with the requirement that it shall not substantially disadvantage disabled pupils.

    The clause requires certain actions but then does not say what they are. The amendment remedies this by ensuring that there will be regulations, either giving a requirement for action or exoneration from action. These regulations must identify, in a mandatory way, what steps the school should take, and those which it need not take.

    Without this amendment, it is likely that we shall continue to have 32 varieties of provision in Scotland, and possibly many more, if each school can draw its own conclusions.

    I shall address my arguments to both amendments for the obvious reason that they have been grouped together, and because I shall be able to point out the wisdom of the Government's course of action in the context of the two amendments.

    Amendment No. 102 would remove from the Bill the regulation-making powers in Clause 12. It may be helpful if I start by explaining why we decided it was necessary to have such regulation-making powers. Clause 12 allows us to make regulations to prescribe circumstances in which it is or is not reasonable for a school to have to make prescribed adjustments, and to prescribe adjustments that it is always or never reasonable to have to make.

    The school system, after all, is a national, regulated system, providing broadly similar experiences to all. The regulation-making powers will allow us to deal with specific problems where it is apparent that it is not appropriate for those matters to be dealt with purely by the general reasonableness test and by guidance in the code of practice. We might, for example, wish to set down categorically that certain adjustments would not be reasonable.

    The regulation-making powers provide sufficient flexibility to be able to respond to changing circumstances or to problems which emerge. It is important that we are able to take account of any changes in arrangements in schools.

    Amendment No. 103 would require us to make regulations irrespective of circumstances. However, if it turns out that the experience of the operation of the reasonable adjustment duty is such that one or more of the four separate regulation-making powers contained in this clause need to be used, we would not want to be forced to use them. We would only tend to use them where we feel it is of great benefit to do so. It may prove to be the case that the application of the reasonableness test, together with the consideration of the factors set out in the clause and the guidance contained in the Disability Rights Commission's code prove to be quite sufficient. We are arguing for flexibility between the two positions.

    One of these amendments is about removing the regulation-making powers; the other is about ensuring that we take them up straight away. There is clearly a balance to be struck here and that is what we think we have achieved in this clause. I hope that, on reflection, the noble Earl and the noble Baroness will accept that the regulation-making powers are needed in Clause 12, and also that the need is for flexibility in the operation of these powers. I hope that they will therefore consider withdrawing their amendments.

    6.45 p.m.

    I am afraid the answer will not do. I argue that, without this provision, we have flexibility. I am arguing for flexibility because the provision will be implemented in many different ways. LEAs or schools differ greatly in what they reasonably can or cannot provide. I have not seen a regulation before any House which does not provide a blanket way of doing something. There is no point in having a regulation which states that schools will do what is reasonable in the circumstances. Regulations will be made when the Government at national level wish a particular rule to apply across a category of schools and/or LEAs. The proposition here is one of rigidity and not flexibility.

    I ask the noble Lord a technical question as to the circumstances when it is reasonable for a responsible body to have to take steps, if the reasonable steps include providing auxiliary aids and/or services by a school and/or a local authority. In Clause 12(2) there is an unequivocal statement that responsible bodies are not required to provide auxiliary services; in other words, it is up to them whether they provide them under the test of reasonableness. Do those two statements conflict? Could regulations be taken by the Secretary of State which, under subsection (a), would say that it is reasonable in the circumstances for LEA X and/or schools Y and Z to make these provisions available? In other words, could they be required to make them available?

    The issue that the noble Baroness identifies—the question of requiring auxiliary aids—is on the face of the Bill. The Secretary of State is bound in his actions by what is contained in the legislation. On the question of whether regulations would be required, it is difficult to predict the precise circumstances in which they would but there might be examples. What if a school felt it should alter its policy on class size in an attempt to meet the requirements? Or if it had to reduce the length of the school day? That might be considered not to be an appropriate way of tackling those issues and there would need to be some power within the legislation that gave any Secretary of State the right to make judgments on the course of action that might be proposed in certain circumstances.

    I am somewhat confused by that answer and indeed by the first one. A school would surely have the right to shorten the school day anyway? These regulations would only stop a school being compelled to shorten the school day by reason of not discriminating. The noble Lord's comments actually suggest that the department does not have any clue as to the purpose of these regulations. They are not going to use them immediately. They are not going to put them into force but wait to see if they are needed; they are a reserve power, as it were.

    Though I would prefer not to have them, I can imagine some practice evolving whereby schools were refusing to provide chest microphones for teachers to help students with hearing difficulties. The Government might then say it is always reasonable to provide microphones under those circumstances and make it a universal practice.

    I cannot however imagine any circumstance when it would be reasonable for us to let the Government have the power that they want in paragraphs (c) and (d). The only time they will need those powers is if some practice has grown up, perhaps as a result of court judgments, stating that this Act means that the school has to do this under those circumstances for the child and the Government are going to use these regulations to prevent that. In other words, they will use these regulations against the children because the courts have decreed that this Act requires some provision to be made for them.

    That sort of back-tracking should not be allowed in secondary legislation, particularly since the Government do not really know what they want to use it for. They are not likely to table regulations under paragraphs (c) and (d) and the Minister is probably not able to produce any examples of the sort of things he would put in those regulations. If my understanding is correct, it is not appropriate that they should remain in the Bill.

    I shall of course withdraw the amendments. As I have said before, I have no other option at this stage in the Bill in the Moses Room. I simply say that this is a control too far. The examples that were given by my noble friend and indeed the responses from the Minister quite terrify me. It does seem that if the Government have in mind to regard the length of a school day and class sizes as reasons for bringing in a regulation which could only do one thing—that is, prevent schools from doing something or giving them a stipulation right across the board, across all categories of school— and if I take prima facie what the noble Lord said (that the Bill says that a responsible body cannot be required to provide auxiliary aids and services) then this regulation power could not be used to require schools to provide auxiliary services and powers.

    The other argument is this. There are mechanisms throughout the Bill to see that schools and LEAs act reasonably. There is a statementing process whereby, if it is decided that a school or an LEA has been unreasonable, they can be required to make that provision.

    In relation to the inspection system, it is possible for Ofsted and/or the Government to have a specific look at the way in which LEAs and schools are behaving. I go back to my original point. It will be school by school that they behave reasonably or unreasonably; LEA by LEA that they behave reasonably or unreasonably, and the notion of taking a regulatory power to do something blanket across all local authorities and all schools simply because one or two are acting unreasonably seems to be inappropriate and a control too far. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendment No. 103 not moved.]

    Before I call Amendment No. 104, I have to inform the Committee that, if Amendment No. 104 is agreed to, I cannot call Amendments Nos. 105 to 108 due to pre-emption.

    moved Amendment No. 104:

    Clause 12, page 11, leave out lines 8 to 26.

    The noble Lord said: I rise to move Amendment No. 104 in the name of my noble friend Lord Ashley of Stoke and I shall also speak in support of his Amendment No. 169.

    These amendments remove from the face of the Bill the duty on a school's responsible body to have regard to a specific list of factors in deciding on "reasonable adjustments".

    Educating SEN children in mainstream schools is an evolving process. Already what at one time would have seemed inappropriate and unrealistic is actually happening and working well. However, in the years to come attitudes will change even more and resources will follow. It is for this reason that the list of factors which have to be considered should be in a code of practice and not on the face of the Bill. They should guide, not bind.

    My noble friend and I believe that, if the factors have legal status, they will unduly fetter the tribunal in developing a concept of "reasonableness" for the future.

    An example is, if a school wanted to modify a sports programme to include a physically disabled child, the factor laying down the need to maintain sporting standards could tie their hands. Amendment No. 169 refers to further education to the same effect as Amendment No. 104 refers to schools. I am pleased to commend my noble friend's amendments to the Committee. I beg to move.

    I rise to speak to Amendments Nos. 105 and 169 which are in my name and that of my noble friend Lord Addington, and to support the other amendments in this group.

    The noble Lord, Lord Morris of Manchester, has already explained why these amendments were tabled. We have here on the face of the Bill a number of specific qualifications as to what is reasonable and what is not reasonable. Earlier we were talking about Clause 11 and the noble Lord, Lord Rix, suggested that subsection (3) was what he called a "cop-out". It seems to me that, in specifying all these detailed issues on the face of the Bill, we are driving a coach and horses through the whole principle of inclusion that we are trying to write into the Bill.

    The difference between Amendment No. 105 and Amendment No. 104 is that we have suggested that it is more appropriate for all the specifics to go into the code of practice. Part III of the DDA, on which I believe that the provisions are based, does not contain an exhaustive list of factors that have to be taken into account in determining what is reasonable. There is no place for such a list of factors on the face of the Bill. It is highly prescriptive and will send out the wrong messages to schools and local education authorities. There is no justification for civil rights in education to be treated less robustly than civil rights in other areas, yet it is a common pattern throughout the Bill. Factors such as,
    "the need to maintain academic, musical, sporting and other standards"
    in paragraph (a) and,
    "the interests of other pupils and persons who may be admitted to the school as pupils"
    in paragraph (g) are wholly out of place here.

    Such factors would be more appropriate in a code of practice. We recognise the need for an interpretation of what constitutes "reasonable steps" and that a range of considerations will be taken into account. I also recognise that the cost of a particular step is a consideration when determining what will be provided through Part IV of the 1996 Act. However, when it comes to a consideration of the rights of other pupils, there needs to be a careful balancing—as the Minister has said on other occasions—of the rights and duties of the various adults and children involved. The face of the Bill is not the right place to rehearse such balances, as the Minister has told us on several occasions. This is the territory for guidance under codes of practice.

    The Government have recognised that in respect of the guidance on the operation of Section 316. What constitutes "reasonable steps" under Section 316A(6) will be teased out in guidance. The Disability Rights Task Force report, From Exclusion to Inclusion, published in December 1999, also made it clear that a code of practice was needed to address such issues and gave examples.

    Amendment No. 105 locates the consideration of what conditions should inform the interpretation of "reasonable" within the code of practice to be drafted by the Disability Rights Commission. Under Section 9(4) of the Disability Rights Commission Act 1999, the DRC code of practice has to be approved by the Secretary of State and it is laid before both Houses.

    It is ironic that on many occasions when we have asked for specifics to be written into the Bill, we have been told that it is not appropriate, yet here we are confronted with a list of specifics that, taken at face value, would drive a coach and horses through the provisions of the Bill. We are asked to accept that that is reasonable. I maintain that it is not.

    I support Amendment No. 105 in the name of the noble Baroness, Lady Sharp, and the noble Lord, Lord Addington. Earlier the Committee talked a good deal about the difficulties caused to children in mainstream schools by having extremely disruptive children in their midst. As I understood the discussion, it was regarded as essential that those most problematic children should go to a special school. I heard only one voice raised in recognition of the argument that children in special schools should not be expected to have their education disrupted and their persons endangered so that children in mainstream schools could work in total peace.

    My vision of inclusion is that all children get the appropriate education for them in an appropriate place with appropriate resources, whether that be in mainstream or special schools or in a combination of the two. I enter that caveat, since we are once again discussing the difficulties caused for children in mainstream schools by having to share with children with special needs. Clause 12(4) is an open-ended invitation to stretch the imagination to find some remote possibility of some child at some time being disadvantaged by having to share resources with a child with special needs. Frankly, most children will face far greater difficulties from other sources than they will ever have to face from the removal of disability discrimination in our schools.

    I hope that, as this amendment proposes, we can sweep away this plethora of entirely unnecessary additional excuses for what I can only describe as injustice.

    7 p.m.

    I like Amendment No. 105. Some very good arguments have been made for it. My concern rests with subsection (4)(a) in relation to subsection (1)(b)to which I imagine that it refers. I can imagine no circumstances under which subsection (4)(a) would be needed. How does one prejudice the academic standards of a school by providing for not discriminating against disabled people? One might be able to catch certain factors under paragraph (g) where they were affecting the interests of pupils or other persons who may be admitted to the school as pupils. But if it does not come under paragraph (g), what comes under paragraph (a)? Can the Minister give me some concrete examples of what subsection (a) is supposed to catch?

    Before the Minister replies, I am afraid that I shall take issue on this. If these provisions are swept away altogether, it may be that the Minister and I are on the same side for once.

    The examples given by the noble Lord, Lord Rix, are reasonable. They are eminently challengeable. They can be challenged by the informal process. They could be challenged by the inspectorate. I suspect they could even be more formally challenged through the statementing process. A school must have some defence.

    Let us use some more extreme examples. I shall not name any schools because it would be invidious to do so. One tends mostly to talk about severely disruptive behaviour. But I have been given some graphic examples of where the disruption factor is so great that it is unable to cope, physically and in terms of staffing. It is unable to manage. An unsupported family has a young person—he is not culpable in any sense—who will not work in groups. It is impossible to leave him alone and impossible to provide "single only" education for him within the school.

    A system for testing whether a school is being reasonable or not reasonable is an important safeguard in the Bill. I hope the Minister will not be tempted to sweep it away.

    On the other hand, it is right that there should be a severe test of a school's case when, for whatever reasons, a school says that it is unable to take a particular child. However, there are circumstances when to accept a child with particular disabilities would be inappropriate for the school, and at the end of the day, it might even be inappropriate for the individual child. The appropriate provision may not be in mainstream schools, but in a special unit or specialist school which deals with particularly severe behavioural problems.

    We should not put that burden on the schools, particularly at this time. The schools are not funded to cope. I know that the noble Lord, Lord Rix, will say that that is not an argument. We have had much debate on money, but at the end of the day, there is a real world. Resources will be finite. If the money and the support for the school are not forthcoming, there needs to be a defence in law for the school to say—it will have to make the reasons public—that it simply would be an inappropriate placement for that child and to allow the system to test the case of the school.

    Before the Minister replies, I should like to point out that Amendment No. 105 does not sweep them all away. It proposes that the conditions should go into a code of practice. I have been arguing that that is more appropriate.

    I apologise to the noble Baroness. I was arguing against the specific amendments which called for the abolition of this part of the Bill.

    The amendments relate to the factors in Clauses 12 and 27, which provide guidance for schools and post-16 institutions on what they should have regard to in determining what is or is not reasonable in the context of the duty to make reasonable adjustments. The factors do not affect the less favourable treatment duty.

    We decided that it was right to set out on the face of the Bill the factors that schools and post-16 institutions should take account of when considering reasonable adjustments. That provides absolute clarity on the issues that institutions have to bear in mind and reassures providers that important matters are relevant when determining what is reasonable. I agree with what the noble Baroness, Lady Blatch, has just said on that. A number of respondents to our consultation said that they were looking for recognition of such factors, not so that providers could evade their responsibilities—of course they should not do that—but to enable them to meet them in a sensible way. Setting out the relevant factors in the Bill also makes it clear to the Disability Rights Commission what needs to be covered in the code of practice.

    The list is not exhaustive, but the code of practice is the right place to provide further detail. Our approach is not unprecedented. The reasonable adjustment duty in Part II of the DDA also contains a list of factors to be taken into account when considering whether it is reasonable for an employer to have to take particular steps to comply with his reasonable adjustment duty.

    The amendments tackle the factors in different ways. Amendments Nos. 104, 105 and 169 would remove the list of factors. Amendment No. 105 would require schools to have regard to the code of practice when considering the issue.

    The other approach, in Amendment No. 106, is to remove only the factor relating to,
    "the need to maintain academic, musical, sporting and other standards".
    The purpose of that provision is to enable schools to preserve particular standards. The school will have to decide whether there is a need to maintain a particular standard, or whether a standard should be adjusted. In most cases, schools will have to adjust the sports programme to include a physically disabled child, because a certain standard of performance would not be necessary. However, if a school is entering a sporting competition with the aim of winning, the school ought to be free to select a team with the greatest likelihood of winning. The presumption is for inclusion, not exclusion.

    Paragraph (a) is not about excluding disabled pupils. Let us not think that having a disability is incompatible with the ability to meet high standards. Our discussion about cricket earlier shows that. The use of objective criteria will make schools think carefully about their activities and about the way in which they choose pupils to take part in those activities.

    Amendment No. 171 would add another factor to the list in Clause 27 to ensure that any grants available to the institution to facilitate the education of disabled students should be taken into account. The factors already allow post-16 institutions to have regard to the financial resources available to them and the cost of taking a particular step in deciding what reasonable adjustments to make.

    We do not want post-16 institutions or schools to focus on taking particular steps only when specific grants or funding are available. That would be contrary to our overall approach. The duties to make reasonable adjustments are anticipatory. The nature of the anticipatory duty means that institutions should look at all the resources that are available to them and not just the specific grants or funding. We want institutions to take a more holistic approach to improving access.

    In conclusion, as on the previous group, I accept that there is a balance to be struck. We think that we have achieved that. I shall take into account the points made by the noble Baroness, Lady Blatch, and the strong feelings expressed by others in the debate and consider whether we can reflect them on Report. In view of my intention to reconsider this issue, I hope that the noble Lord will feel able to withdraw his amendment.

    Before the noble Lord, Lord Morris of Manchester, replies, could I ask the noble Baroness for some further clarification on Amendment No. 106? I had not read new Section 28C(4)(a) and (b) as giving any right to disabled pupils to a place in the first football team just because they were disabled. I cannot see how the noble Baroness is reading that in that way, or how, in the absence of subsection (4)(a), disabled persons would have a right to a team place if they were not among the best eleven in the school.

    It seems to me a very dangerous thing to put in this sort of overall idea of the maintenance of academic, musical, sporting and other standards because it suggests that a disabled person can threaten those standards. It is reasonable to suppose that there are circumstances where having a disabled person in a school would result in the musical standards being lower. You have a person in a wheelchair, it squeaks and disturbs concerts. What are we talking about here?

    I cannot see any circumstances where paragraph (a) applies and the matter would not be caught by paragraph (g). Paragraph (g) is a totally reasonable provision, but if you are not affecting the interests of other pupils in any way, what reasonable sort of discrimination are we talking about which should allow a school to say, "You are not affecting the other pupils but we will exclude you because you will affect the musical or sporting standards of the school"?

    I cannot see how the provision is going to operate. This may be a lack of understanding on my part. If the noble Baroness could, in the interim before Report, give me some worked examples of the sort of evils which would occur if paragraph (a) went, I would be extremely grateful.

    I should like to add to the argument of the noble Baroness, Lady Sharp, on Amendment No. 105. It is not saying that we want to remove these regulations; we are saying that they should be expressed in the code of practice. The reason is that when these regulations are on the face of the Bill there seems to be a draconian element to them and they seem to provide in tablets of stone the excuses that schools are looking for. Whereas yesterday the noble Lord, Lord Davies of Oldham, said, in response to a question of mine:

    "The straightforward answer is that if we put everything in statute we would not need a code of practice. But we would also lose the flexibility which codes of practice can produce for the way in which legislation is interpreted and implemented".—[Official Report, 29/1/01; col. CWH 87.]
    I would have thought that applied to these particular clauses precisely, and I would have thought we would all be delighted if they went into this ever-increasing size of code of practice. On the other hand it would be capable of interpretation perhaps more liberally than on the face of the Bill.

    Before the noble Lord, Lord Morris, replies, I endorse the points made by the noble Lord, Lord Lucas, and by the noble Lord, Lord Rix. The measure that is particularly objectionable is paragraph (a) of subsection (4) because it leads to selectivity and to exclusion. It would be very unfortunate if that were on the face of the Bill.

    While I thank my noble friend Lady Blackstone for her response, as before, I reserve the position of my noble friend Lord Ashley in regard to pressing the amendments further on Report. Meanwhile I know that he will be as appreciative as I am of the support they received in Committee here today. Indeed, I thought my noble friend Lady Blackstone ended her speech on a highly positive note. It may therefore not be necessary for my noble friend and Ito work too strenuously to carry the amendment on Report. It seems that we may have the Minister's support at that stage. I trust that is not undue optimism. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendments Nos. 105 and 106 not moved.]

    7.15 p.m.

    moved Amendment No. 107:

    Clause 12, page 11, line 19, leave out ("or services") and insert (", services or finance").

    The noble Baroness said: In moving Amendment No. 107, I shall speak also to Amendments Nos. 108 and 172. We are still on Clause 12 with the theme of what is reasonable for a school to do in order to overcome disadvantage to a disabled pupil and what would be unreasonable or excessive. In making that judgment the governors of the school have a list of considerations given to them in the Bill, which they need to take into account when assessing what steps they can reasonably take to accommodate a disabled pupil.

    I am pleased to note that subsection (4)(c) lists the costs of taking any particular step and it is a pity that cost was not similarly emphasised in Part I of this Bill dealing with children with special educational needs. Whether we like it or not, costs matter and, in the real world, finances available to local authorities and their schools are always limited. However, subsection (4)(e) goes on to advise the governors that they can take into account which aids or services would be provided under legislation.

    That does require amendment. It is not just aids or services to be provided; it is money. The governors will naturally bear in mind the cost of any improvement proposed to assist a disabled child as well as the finances they have to meet that cost. They would not be good governors if they did not ensure financial probity in these matters. The real concern is the inevitable tension that will result from a Bill that raises everybody's expectations; which puts legal obligations on local authorities and schools who may not have the resources or who may have no choice but to meet such obligations resulting in serious financial problems elsewhere in the system.

    Amendments Nos. 108 and 172 are about proportionality. It was, I believe, my noble friend Lord Lucas—or somebody else around the table earlier this afternoon—who addressed this whole issue of proportionality. The amendment to Clause 12 of the Bill relates to provisions requiring disabled children not to be substantially disadvantaged in respect of a school's admissions policy or, where they are in school, in respect of their education there. There are similar provisions relating to disabled students in higher education in Clause 27 of the Bill, to which we are proposing a similar amendment.

    In summary, I welcome and support the policy embodied in this part of the Bill, which seeks to protect disabled children from discrimination at school. I also endorse the Government's recognition in this clause that the anti-discrimination requirements need to be tempered by reasonableness, having regard among other things to the interests of the other, non-disabled schoolchildren. The amendment is designed to give specific practical effect to this principle in one important way.

    By way of background, Clause 12 is designed to extend the scope of the Disability Discrimination Act 1995 by inserting a new provision—the proposed new Section 28C of the 1995 Act. The proposed new Section 28C would extend the anti-discrimination rules to the sphere of school education. In particular under the proposed subsection (1), the responsible body for a school—generally the LEA or, for a private school, the governor or proprietor or, as I argued yesterday, the same person—is obliged to take such steps as are reasonable to ensure that disabled children are not placed at a substantial disadvantage compared with non-disabled. However, both in its policy for determining school admissions and, once children are in school, in respect of their education and associated services, the proposed subsection (4) is intended to clarify what is meant by "reasonable" in this context; that is, what is the extent of the duty to take such steps as are reasonable?

    The proposed subsection (4) lists seven factors—(a) to (g)—to which regard shall be given in determining reasonableness. The last one in paragraph (g) of the proposed subsection (4) is that regard must be had to the interests of other pupils and persons who may be admitted to the school as pupils—"other" meaning non-disabled pupils and applicants. We support that principle. It does seem right in determining the rights of disabled children not to be discriminated against, to take account also of the rights of the rest of the children. The right to be educated properly and effectively at school is something that should be enjoyed by all children.

    Our aim is to give practical effect to the Government's principle. We propose that the principle in subsection (4)(g) should expressly state the consideration that the interests of non-disabled children,

    "will depend in part on the proportion that disabled pupils constitute of the total number of pupils in any one lesson or class or school".

    The example has been given of a school that gains a reputation for dealing with children with autism. Over a period, more and more children with that particular problem go there, to the point when the education of all the children—those with autism problems and the rest—is affected. My amendment is about proportionality.

    We hope that the Minister will agree with that proposal. We support the compassionate objectives of the Government's provisions. It is right that disabled children should not be discriminated against. However, allowing that to result in a disproportionate concentration of disabled children in any one class or lesson or school would be a form of dogmatic political correctness, which I would not want to support.

    I emphasise again that the important point is what is appropriate. If it is appropriate to have a large number of children with similar disabilities and that is accommodated by the school, by the parents and by the LEA, of course that is the right thing to do. However schools that are particularly effective in dealing with children with particular conditions or behavioural problems may suddenly find themselves with so many placements that their provision becomes ineffective. I beg to move.

    The amendments relate to the factors in Clauses 12 and 27, which provide guidance on what schools and post-16 institutions should have regard to in determining what is and is not reasonable in the context of the duty to make reasonable adjustments.

    Amendments Nos. 107, 108 and 172 would add factors to the lists. Amendment No. 107 would insert the need to take account of the finance provided for the disabled pupil under the SEN framework. The aids and services needed to cater for a child's SEN needs will be identified and provided through the SEN framework. For those with the most acute needs, they will be set out in the statement of SEN. The resources made available to meet particular SEN are an intrinsic part of the provision of those aids and services. More generally, they will form part of the resources available to a responsible body, so they can be taken into account under subsection (4)(b).

    The intention behind Amendments Nos. 108 and 172 is to make the school or post-16 institution consider the proportion of disabled pupils or students in a class when considering what reasonable adjustments should be made. However, in many cases the proportion of disabled children or students in a class has no relevance to the question of whether any particular reasonable adjustment will affect the interests of other children. For example, if a school has a practice of allowing a disabled child to do an alternative sport to the one that the rest of the class are doing, it will rarely make any difference to the interests of the other children if a few extra children take that alternative sport.

    Similarly, if college students who are blind receive material on audio tape, whether one person or five people in the class receive this will not affect the interests of the other students. The interests of other students will not always depend even in part on the proportion of children with disabilities in the class, as the amendment suggests. We do not think that the Bill should suggest that it does. If the interests of the other students are affected in that way, the school or post-16 institution will be able to take that into account when deciding what adjustments to make under the Bill as it is currently drafted.

    The amendments are not necessary and they are not very helpful either, so I hope that the noble Baroness will not want to press them.

    The noble Baroness has just argued that the amendment will not be needed if the issue of proportionality has no relevance. In that case, the only requirement is that regard should be had to the issue of proportionality. If it had no relevance, it would be discarded and they would move on to something else. It does not seem to be an argument against my proposal. However, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendment No. 108 not moved.]

    The noble Baroness said: I can be brief on this amendment. It seeks to leave out subsection (6) in Clause 12; to explore with the Minister what, frankly—if I may use the colloquialism—this gobbledegook means. Why is it necessary to write into primary legislation that, having received a request for some steps to be taken to improve the provision for a disabled child, the governors must see whether the steps that they propose to take do meet the request being made? I should have thought that was obvious. I beg to move.

    I hope that I can also be brief in response. The amendment would remove the factor that schools must take into account in relation to the reasonable adjustment duty which deals with the wishes of the parents of a disabled child to have the disability treated as confidential.

    As I explained earlier, the duty on responsible bodies to make reasonable adjustments is anticipatory—we emphasised that in earlier discussions in Committee this afternoon. Anything that can be done in reasonable anticipation that pupils with particular disabilities may attend the institution therefore has to be done, irrespective of knowledge or confidentiality issues.

    However, some disabilities are not obviously apparent and Clause 12 allows schools to take into consideration a request made by a parent of a disabled child that a disability may remain confidential. That might include disabilities that could cause a child to feel embarrassed or vulnerable. The school must take into account whether making a particular adjustment will result in disclosure of the disability contrary to the wishes of the parent. That is the basis of this amendment.

    I have two points to make. First, that is not an answer to the proposition I was making, nor was it an answer to the problem here. Secondly, the noble Lord addressed something quite different; something which this amendment does not seek. In my book, that is otiose.

    If the school is either anticipatorily considering or considering when it is about to make a determination whether it is reasonable for the responsible body to have to take a particular step in relation to a child, it would go without saying that the school would have to consider whether it matched up to the request being made. It really is otiose, and I hope that it will disappear from this Bill before it passes from this House.

    Perhaps I could pick up what may be the origin of this problem. Subsection (5), when read with subsection (6), just about makes sense. But subsection (5) does not say that subsection (6) only applies when subsection (5) applies; so subsection (6) applies in every case. That is where the difficulty arises—it is not only applicable to subsection (5); subsection (6) actually applies to the whole clause.

    Perhaps I may add support to this. In pursuit of plain English, we really should be able to do better than the gobbledegook of subsection (6).

    Amendment, by leave, withdrawn.

    7.30 p.m.

    moved Amendment No. 110:

    Clause 12, page 11, line 37, after ("person") insert (", or by the disabled person himself,").

    The noble Baroness said: This is a subject that was discussed earlier today. It is a simple amendment and I believe it is necessary. In Clause 12, provision is made for a request of confidentiality as to the nature of a person's disability to be observed by the local authority. Such a request for confidentiality is made by the parent of a disabled person and, while it is reasonable for the parent to make such a request on behalf of a young child, it is also proper for the child—certainly if they are of secondary school age—to be able to request that confidentiality themselves.

    I beg the Minister not to tell me that young people do not have the capacity to request confidentiality when I sat through the whole of yesterday being convinced that they do indeed have the capacity to request confidentiality if they are taking the morning-after pill. This is simply to guard the young person's coyness, sensitivity or whatever it might be, about their particular disabilities. It seems reasonable that a child—certainly of secondary school age—should be allowed to request confidentiality. I beg to move.

    I note that the noble Baroness introduces an aspect of yesterday's debate which revolved around confidentiality in relation to a medical position, and not directly in relation to the educational one. Surely the noble Baroness would accept the whole basis of our education system as far as responsibilities and rights are concerned; namely, that the parent is at the heart of the system. It is the assumption that parents generally act in the best interests of their children on which the whole of the school system is surely based.

    Of course we expect schools to take account of the views of the disabled child. Disabled children may well have views about keeping their disability confidential. Schools should always work in partnership with their pupils and their parents. That is particularly important when a child has special needs or disabilities.

    I hope that we are as one in terms of the broad objectives of the legislation and the relative responsibilities of the parent in relation to the child as far as the Bill is concerned.

    I am probably about as close to being cross in this Bill as I have ever been. The noble Lord said this is about education; it is about the child. It is about the specific disabilities of a child who is highly sensitive. If a parent supports the request for confidentiality, that is fine. We would all agree with that. However, as my noble friend said earlier, it is not every young person who is represented by a parent in these circumstances. Therefore, it should be open, certainly to a child of secondary school age, to request confidentiality.

    The noble Lord says, "Ah, but taking the morning after pill is a medical matter", it is about sleeping around and taking a pill after the event. We are talking about young people with disabilities they are sensitive about who do not wish that to be known more widely than it needs to be known within the education sector. I can see no reason at all why the noble Lord should not be sympathetic to both the parent's request and also to the individual teenager's request.

    Perhaps I can speak up for the noble Baroness, Lady Blatch, in this instance. I believe that a great deal of bullying takes place when people have physical impairments of one sort or another. The child should be able to keep that confidential from, not necessarily the authorities perhaps because of the special circumstances of going to school, but certainly from his or her fellow pupils.

    It should be their right to ask that this is kept to themselves, and they should be able to say that to their parents as well. I cannot believe that parents would not be confidential in these circumstances, but it could happen. To grant a child a right of confidentiality is fair and just.

    I offer my support to the noble Baroness, Lady Blatch. It seems to me that it is utterly right on these occasions, if children are old enough to express their own views on this, that they should be taken into account. If I might say so, the logic of the reply the Minister gave us points entirely in that direction.

    I too support the amendment. I hope that the Minister will reconsider his reply. We are talking about conditions such as being incontinent and having HIV status, etcetera. Those are sensitive issues. I beg him to think again.

    In the light of the strength of the representations that have been made in support of this amendment, I will certainly look again at the debate we have had this afternoon.

    Amendment, by leave, withdrawn.

    [ Amendment No. 111 not moved.]

    Clause 12 agreed to.

    Clause 13 [ Accessibility strategies and plans]:

    moved Amendment No. 112:

    Clause 13, page 11, line 46, after ("period,") insert ("the learning, teaching and").

    The noble Lord said: I rise to move the amendment of my noble friend Lord Ashley, which, if accepted, will put due pressure on authorities to recognise that disability ranges far wider than having limbs that do not work. The clause as drafted requires authorities to prepare strategies and plans for improving the physical environment of schools. That is admirable, particularly for children in wheelchairs or with callipers. However, it does nothing for children with any other disabilities.

    To be properly educated, blind children may need braille or in some cases large print. Deaf children may need portable induction loops, videos with subtitles or TVs with teletext. The planning duty should cover provision of these essential aids over time so that children do not need to be statemented before they get them. Speedy decisions matter in education. It has been said that the planning duty will include such an adjustment. But the Bill does not say that and my noble friend Lord Ashley and I do not accept that view. The language needs to be strengthened to ensure that there is no need for argument or disagreement. I wholeheartedly support my noble friend's amendment.

    I turn now to Amendment No. 113A, which stands in my name. This amendment to Clause 13 requires stronger LEA planning for the inclusion of children with special educational needs. It was encouraging to see the support expressed at Second Reading for increasing the inclusion of SEN pupils in mainstream schools. It is, however, vitally important that such inclusion should be properly organised and resourced if is to be effective.

    The amendment provides a stronger planning requirement on education authorities and schools in order that children with special educational needs are provided with properly supported mainstream education. With many others, I believe that LEAs and schools should have a fixed period of time to prepare to support the full diversity of disabled children and the whole range of impairments.

    Sharon Rustemier of the Centre for Studies on Inclusive Education has prepared a number of case studies demonstrating the stress and emotional strain for families in obtaining adequate mainstream support, provision for which we feel should be theirs as a basic human right and which requires stronger legislation to achieve. I shall be making those case studies available to the Minister and I hope that she will look at them with her customary care and understanding.

    In Sharon's view, schools need to be ready, in order to cater for diversity, to support any child in their locality and be prepared to set up arrangements as necessary to accommodate individuals, whatever their needs. Cleves School, in London Newham, is a good example of how teams of teachers and learning supporters work together with other professionals and parents to provide every child with access to learning.

    Sharon feels, as I do, that such a commitment needs to be enshrined in legislation so that no child is discriminated against. I hope that the Minister will see the significance and importance of the amendment and that he will respond positively to its purpose. I beg to move.

    In speaking to Amendments Nos. 113 and 118, I am supported by the noble Lord, Lord Addington (regrettably he is not in his place), the noble Baroness, Lady Sharp of Guildford, and the noble Baroness, Lady Blatch—a formidable triumvirate indeed. The amendments are a complete mirror image of Amendments Nos. 112 and 117.

    It is a matter of continuing sadness to me that the whole access debate so often resolves itself into a debate about whether you can get a wheelchair in. In the early days of the late Millennium Dome—which was quite good on access—it took some time for the Access Advisory Committee to get beyond the planners' initial preoccupation with physical access. Now, in an educational context, despite the Disability Rights Task Force recommendations and the department's consultation document in March last year, we seem yet again to be concentrating on physical access.

    I am sure that being able to get a wheelchair into a toilet is very important, but for the disabled child with learning disabilities or difficulties, accessing education depends on the curriculum, the teaching methods and materials, classroom and wider support, the measurement of progress, the way the school and the class are organised and the way that the child is supported.

    The inclusion debate in education is coloured by an apparently simplistic assumption that if you change the physical environment you have achieved equal access. That is simply untrue. Every child is capable of learning, but many children in special schools as well as in mainstream schools are not being given the chance to learn, because the educational experience offered to them is irrelevant to their needs. Imagine the effect on our education had we been given a comfortable chair in a comfortable classroom, but the lesson was conducted in a language that we did not understand, accompanied by gestures that meant nothing to us with tasks that we found unintelligible and goals that were incomprehensible.

    I cannot believe that the Government have misunderstood the challenge of inclusion as completely as Clause 13 seems to suggest. I hope that the amendments will be accepted, or at least that I will be given substantial reassurance, perhaps in the ever-lengthening code of practice.

    I support what the noble Lord, Lord Rix, has said. Amendments Nos. 112 and 113 duplicate each other, as do Amendments No. 117 and 118. The issue here is access to the curriculum in its widest sense. It is not just a question of physical access. It is vital that we have that on the face of the Bill.

    Amendment No. 113A is of a different category. I have some reservations about it, because it would require us to look to the planning. The accessibility strategy should be that all disabled pupils will be capable of attending a mainstream school. I have made clear my support for the principle of inclusion, but I do not believe that it is realistic to expect to be able to accommodate all disabled pupils in a mainstream school. Some disabled people do not wish to be included. I was asked whether I would put my name to the amendment, but I do not think I can.

    I give my support to Amendments Nos. 113A and 118. In response to the noble Baroness, Lady Sharp, the point is that mainstream schools should be capable of absorbing the full diversity of children and giving them a good education. They do not necessarily all have to go there, but the place should be available for them. Maybe they will come in and out as appropriate.

    The aim of the clause is that over a prescribed period, we will achieve full inclusion for all disabled children. In the London Borough of Newham, the principles were set down initially and it has been achieved over time. There are currently also two Channel 4 programmes that speak to this very well called "Count Us In", which I recommend to Members of the Committee. I give my full support to these amendments.

    I do not want to hold up the proceedings but I should like the noble Lord, Lord Rix, to know formally, on the record, that I support the whole point of having curricular arrangements properly addressed, and that will include Amendments Nos. 113, 117 and 118.

    7.45 p.m.

    I support Amendments Nos. 113 and 118. I am concerned that Clause 13 uses too narrow a definition of disability. It needs extending to ensure that curriculum teaching and learning arrangements are included on the face of the Bill. This is a particular problem for children with an autistic spectrum condition; they need access to the curriculum. Currently, a lottery exists as to whether LEAs will plan provision for children with autism.

    Due to the breadth and complexity of the autistic spectrum, authorities must plan for a range of educational provision, ranging from autism-specific schools, colleges and units to supported mainstream places. The challenge of autism is exacerbated by the increasing reports of a significant increase in the number of children with autism. Research by Dr Fiona Scott of the Autism Research Centre at Cambridge University has shown that one in eight of the primary school SEN population of Cambridgeshire has a diagnosis of an autistic spectrum condition.

    Yet lack of trained staff remains the critical barrier to the effective inclusion of children with autism. Where staff are not adequately trained, a sympathetic placement in the mainstream will remain difficult and parents will continue to seek a specialist autism-specific environment for their child.

    Research has shown that 70 per cent of teachers, in the mainstream, taught children with autism but only 5 per cent reported having specific training in their basic teaching qualifications, and only 5 per cent reported attending subsequent autism-specific training days.

    The current wording of Clause 13 will undermine the Bill's best intentions if the interpretation of access remains confined to physical limitations alone.

    I entirely support the same two amendments and would only add what wonderful schools they are that concentrate on this aspect of the work, because they are so much better for ordinary kids too. There are so many benefits that come from providing properly and individually for the learning and teaching requirements of disabled children, particularly children who have dyslexic/dispraxic autism spectrum disorders. It breeds an attitude in the school and its teachers; it breeds a range of facilities which are of enormous use to ordinary kids. They are wonderful places to visit and this is something we should be encouraging. Just making doors wider is not really not where it is at.

    The planning duty is a crucial mechanism for increasing, over time, the physical accessibility of school premises and the curriculum to disabled pupils and disabled prospective pupils. After all, as first steps towards learning, pupils need to be able to get into and around the school and the classroom and be in a classroom which is conducive to their learning. We are aware that, although some good practice exists, LEAs do not plan as strategically as they could.

    We have accepted the Disability Rights Task Force's recommendation that the most effective way for increasing accessibility for disabled pupils is by taking a more strategic approach with local education authorities working with schools in their area to increase accessibility.

    What is the planning duty intended to achieve? It is not just about increasing the accessibility of premises; it is also about increasing physical access to the curriculum by providing aids to learning outside of the SEN framework, which provides specific aids and services to meet the needs of individual pupils.

    We want to ensure that LEAs and schools do more to improve physical accessibility than just providing ramps and lifts. We want them to think about what physical measures will help disabled children access the curriculum. This may include providing laptops, using appropriate paint schemes and carpets, installing soundfield systems or providing specialist furniture.

    The provision of such physical aids can be used to improve access to education by a range of disabled pupils: they are not restricted to one type of disability.

    We recognise that improving physical accessibility to schools is important. LEAs in England are eligible for funding through the schools access initiative to increase accessibility to mainstream schools for pupils with both physical and sensory disabilities. The sum of £220 million is being made available to LEAs in England over the next three years, which is a significant increase over the £30 million which was allocated this year.

    If this were all that LEAs were required to do, the amendments might have some substance. However, other provisions in this Bill and other measures already being taken by this Government provide sufficient levers to ensure that teaching and learning arrangements are sensitive to the needs of disabled pupils.

    We do not believe that schools' plans and LEAs' strategies are the right vehicle for securing change to teaching and learning approaches. These amendments would introduce additional administrative burdens when schools and teachers are now required to ensure that they follow inclusive practice in delivering the national curriculum.

    Under Clause 12, schools will have to consider what reasonable adjustments to practices, policies and procedures such as general teaching methods should be made if particular arrangements would place disabled children at a substantial disadvantage.

    All maintained schools and a fair few independent schools follow the national curriculum. The national curriculum statement on inclusion sets out three principles that teachers are required to have due regard to in planning and teaching the national curriculum: setting suitable learning challenges; responding to pupils' diverse learning needs; and overcoming potential barriers to learning and assessment for individuals and groups of pupils.

    It goes on to say that teachers should take specific action to respond to pupils' diverse needs by, among other things, providing equality of opportunity through teaching approaches. For pupils with disabilities, it specifically states that teachers must take action in their planning to ensure that these pupils are enabled to participate as fully and effectively as possible within the national curriculum and the statutory assessment arrangements.

    This is a major lever for ensuring that teachers, as part of their professional duties, will consider how to adjust their teaching methods to ensure that disabled pupils are able to access the curriculum—which is the burden of the speeches and the nature of these amendments.

    During the Second Reading debate, the noble Baroness, Lady Sharp, described the planning duty as appearing "very weak". This is not so. It should not be seen on its own, but rather as part of the wider framework which includes the existing SEN framework that provides auxiliary aids and services to meet children's special educational needs; the duty to make reasonable adjustments; additional school access initiative funding; the national curriculum statement on inclusion; and increased funding for training for SEN. These will increase services to disabled children and make provision that will help them develop to their full potential.

    Let me turn to Amendment No. 113A. We recognise the importance of making schools physically accessible to pupils with disabilities, which is, of course, the intention of the planning duty. I sympathise with the intention of Amendment No. 113A, but it would be unreasonable to expect LEAs to ensure that their mainstream provision is accessible and can cater for all disabled pupils within the prescribed time period of the strategy.

    The planning duty is to plan strategically over time. The LEA may initially decide to concentrate on improving the accessibility of its schools to pupils, for instance, with a hearing impairment. Alternatively, the LEA may decide to improve the accessibility of one school to a number of pupils with a number of different disabilities. We do not want to be prescriptive. It will be for each LEA according to its particular circumstance to prioritise. Not all LEAs will start from the same starting point. Some LEAs, for instance, may already have accessible provision for visually impaired pupils.

    As time moves on, we naturally expect LEAs to have made progress in increasing the physical accessibility of schools to disabled pupils. The duty is progressive. But it is also realistic in recognising that some schools, because of the availability and nature of their building stock, may have further to go than others.

    In the light of this description of the way in which all aspects of educational policy come together, I hope that it will be recognised by the noble Lord that this amendment need not be pressed.

    In dealing with the amendments of the noble Lord, Lord Rix, the Minister suggested that these plans would cover such things as provision of equipment for the hard of hearing and laptops. I do not see how that fits under the phrase "physical environment". If I were asked to describe the physical environment of this room, I would say it was cold and dark, and I would be right, but the fact that I do not have a laptop in front of me has nothing to do with the physical environment of this room.

    If we were to put the words "and equipment" after "environment", then I would understand that what the Minister said corresponded to what was in the Bill, but that is not there at the moment. Would the Minister consider their inclusion?

    At the very beginning of our Committee proceedings there was a complaint about the physical dimensions of this room and about the acoustics. I thought it was indicated that they could be improved. I hear what the noble Lord, Lord Lucas, has said on this occasion and I will look further at that point.

    Before my noble friend Lord Morris of Manchester concludes the debate, as I imagine he will, I would like to say that I cannot totally accept what was said by the Minister. The amendment does not place an additional burden on LEAs and teachers and schools any more than is already put upon them in the Bill. It clarifies the situation and it also puts a belt and braces not only on the physical access, but also on the teaching access which is essential for all disabled pupils.

    I fear that I must return to this issue possibly when we come to the next stage of the Bill, but I shall consult with the Special Educational Consortium who will, I hope, in turn have words with officials in the department. I hope that some compromise may be reached.

    Before the noble Lord, Lord Morris of Manchester, winds up, I would like to endorse what the noble Lord, Lord Rix, has said. We have had a great deal of explanation on the essence of the clauses and in particular on the vital role played here by the long-term strategy. It gives completely the wrong message to mention just the physical environment here. It is very important that the concept of access to the curriculum is embedded on the face of the Bill.

    We have had an informed and worthwhile, if discursive, debate on these important amendments. I trust I may be forgiven for expressing special pleasure about the speeches of my noble friend Lady Wilkins and the noble Lord, Lord Rix.

    Turning to the reply from the Minister, while I had hoped for more today I am not unhopeful of a more favourable reply when we return to these issues on Report. After all, the Minister said that he favours the intention of Amendment No. 113A. Is it unreasonable to expect that he may take one further step and discuss with those who support the amendment any necessary improvements to its drafting if that would help matters along?

    Meanwhile, I again reserve the position of my noble friend Lord Ashley in regard to Amendment No. 112, and on this occasion also my own position in relation to Amendment No. 113A. On that basis, I shall not press the amendment. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendments Nos. 113 to 113A not moved.]

    The Committee stands adjourned until Tuesday, 6th February 2001.

    The Committee adjourned at one minute past eight o'clock.