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Special Educational Needs And Disability Bill Hl

Volume 622: debated on Tuesday 20 February 2001

The text on this page has been created from Hansard archive content, it may contain typographical errors.

8.30 p.m.

Further consideration of amendments on Report resumed on Clause 2.

[ Amendment No. 33 not moved.]

moved Amendment No. 34:

Page 3, line 33, at end insert—
("( ) A local education authority must at all times have regard to the best interest of the children for which it is responsible.").

The noble Lord said: My Lords, as I discussed before supper, I have degrouped Amendment No. 34 and will speak to it separately. I shall not repeat all that was said in the Moses Room. We went over this subject many times in an effort to try to find a way of using the Bill to bring local education authority practice into line with the Children Act and other more recent pieces of legislation to make sure that the best interests of the child are taken properly into account.

I think that we set up a row of several amendments and the Minister skittled us out very effectively by pointing out that if we impose an obligation on local education authorities to have regard to the best interests of a particular child, we were only likely to find ourselves disfavouring some other child. In response to the arguments raised in Committee I seek to impose a general duty on a local education authority to have regard to the best interests of the children in its care and to leave it to that local education authority to balance matters as it sees properly fit. But at least the duty will be there underlying its thoughts and actions and education will come into line with the other ways in which we have dealt with the manner in which authorities deal with children. I beg to move.

My Lords, I am grateful for the elegant way in which the noble Lord introduced his amendment. However, I am sorry that he thought that he had been skittled out in Committee. That is not our intention. If he saw my donkey drop bowling these days, he would realise that I am not capable of skittling anyone out.

I seek to meet the point behind Amendment No. 34. I agree it is right that LEAs should consider children's interests. That is as true of children with special educational needs as it is of all children. In providing advice and information parent partnership services must be neutral. There may be various different ways of making appropriate provision for children with special educational needs. Parents should be offered the choice and they can decide what is in their child's best interests. I think that the noble Lord shares that sentiment.

Parent partnership services can support them in this, but, in giving advice, they should not substitute their judgment for that of parents. They are not in a position to judge what may or may not be in the child's best interest. Parent partnerships can make sure that parents have information about the full range of options that are open to them so that they can take informed decisions about the best provision for their child.

As was indicated earlier, the revised code of practice will clearly set out that the advice and information provided by parent partnership services must be neutral and must set out the wide range of options available. This will be part of the minimum standards and core functions that we expect of parent partnership services. That ought to be the framework within which the interests of the child are best served. I know that that is the intent behind the noble Lord's arguments this evening. I hope that in the light of that reply the noble Lord will feel able to withdraw the amendment.

My Lords, I held out no great hope that I would make progress with this amendment. I am grateful for the noble Lord's reply. I shall read it with interest in Hansard, along with the other replies that have been made to amendments on this same subject. But for now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 35:

Page 3, line 42, leave out ("proprietors") and insert ("governing bodies").

The noble Baroness said: My Lords, in moving Amendment No. 35, I wish to speak also to Amendments Nos. 37, 39, 59, 97, 98, 99, 156, 157 and 158.

There is a kind of dogmatism that rules in the Bill. I suspect that the edict which has gone out in government circles is, "Whatever you do, do not give in to anything, however strong the arguments might be for it". I read the responses in Hansard to my suggestion for a different word to "proprietor". They make interesting reading. In fact, I tried them out at a dinner party the other night to give the guests some idea of some of the parliamentary gobbledegook that is used. Anyone who consults a dictionary for the meaning of the word "proprietor" will realise that it is the wrong word to use in the Bill.

I refer to the argument which I have always said I am never impressed with, even though I may have been a Minister in the previous government; namely, the fact that it has been used in legislation before is no argument for it to be used again. Whatever counsel may say in the background and however tidy minded people are about the matter, it seems to me that there is a good argument for using a more relevant word and one that means something in practice for the poor people who will have to interpret the meaning of the Bill. They are the people—not us in Parliament—who at the end of the day will have to make sense of the Bill and make it a practical proposition at ground level.

"Proprietors" should be replaced with "relevant authority" or in other parts of the Bill with "governing bodies", "head teachers" and so on. The term "proprietor" appears many times in the Bill. In many of those places I sought to replace it with the words "relevant authority". Elsewhere, where the context requires it, I sought to replace the term with the words "governing bodies" and in other contexts with the terms "head teachers", "governing bodies", "trustees", even "proprietors or other relevant authorities".

The term "proprietor" is clearly understood in the world of education as being the owner of a profit-making independent school. There are few such schools in this country, but there are some which are owned by a proprietor. These are not charities; these are schools which make a profit as an income to the proprietor and possibly also to some shareholders. Most independent schools are not for profit registered charities. Certain well-known independent schools are not for profit exempted charities—a term used by the charity commissioners. A proprietor himself is the governing body of the school or may himself appoint a governing body of several persons. It is clear therefore that the use of the term "proprietor" in the Bill covers only those few for profit schools.

The Minister said in Committee that the term "proprietor",

"has a very long-standing legal meaning. It is defined in Section 579 of the Education Act 1996 as meaning:
'The person, or body of persons, responsible for the management of the school, including governing bodies"'.—[Official Report, 29/1/01; col. CWH 103.]

I suggest that that was a meaning put on it by a civil servant or even by parliamentary counsel. It is certainly not a meaning that one finds in any dictionary in the world. The 1996 Act was passed under the previous government and I make no apologies for that. I simply believe that in the context of the Bill the word is wrong.

If past legislation states that black is white, lawyers might say that black is white. However, everyone else would say that that is nonsense. The use of the term "proprietor" to mean the governing body of all independent schools and even, as the noble Baroness said, of the city technology colleges and academies, is a nonsense. Lewis Carroll may have given the words to Humpty Dumpty in Alice Through the Looking Glass,

"When I use a word it means just what I choose it to mean, nothing more, nothing less".

but I doubt we should apply such logic to a piece of legislation which is supposed to be read, as I said earlier, and understood by all those in the world of education and others besides. For them, when I use a word it has to mean what is generally understood by them to be its meaning.

The noble Baroness put up a vigorous defence of her use of the word "proprietor" and no doubt we shall hear it repeated tonight. However, I cannot understand why she did so when much more accurate descriptions of the persons responsible for a school were offered to her. In no way do the amendments change the intentions contained in the Bill. On the contrary, they clarify that it is the relevant authority of all schools which is to be consulted, informed and so on in the different clauses of the Bill. Nor do you have to go to the Treasury to ask for money. When I was a Minister in this House, I heeded the advice from time to time (although not always) that when the opposition oppose a Bill or put amendments to it, the government should concede if to do so costs nothing or even—dare I say it—may improve the Bill. That used to buy peace. I suggest that the Minister may consider doing the same. The amendment would make more sense to people who have to read the Bill. It would make more sense to parents who have to make sense of legalese. It would make it easier for those who are divorced from reading these legal niceties.

The Minister made one tiny concession in Committee. She said that the Government were prepared to consider adding "or head teacher" at the end of Clause 8(12)(b). I request the noble Baroness to include that concession in the Bill and to accept all the amendments which replace "proprietor" with the more encompassing term "relevant authority". In some clauses of the Bill the proposed amendments spell out all those responsible for schools—trustees, governing bodies and head teachers. In that context, "proprietors" can also be included, thereby covering that tiny number of schools which have a proprietor. I see no amendment on the horizon to that effect. I beg to move.

My Lords, I fear that I shall not be tremendously constructive on the amendment. I recognise the strength of feeling with which the noble Baroness presented her case against the word "proprietor". I cannot pretend that it is the most elegant term to have in an education Bill. However, the argument presented in Committee is entirely valid. The word appears in the Education Act 1944 and all Acts since including all the education Acts when appropriate during the 18 years of the last administration. So there are difficulties about producing an alternative to it.

The noble Baroness referred to a small number of schools which may not have governing bodies. The number of schools which do not have governing bodies is 863.

My Lords, perhaps I may correct the noble Lord. I said that there were a very small number of profit-making schools.

My Lords, I misheard the noble Baroness and apologise. I recognise that factor. The noble Baroness contends that to the lay person the concept of "proprietor" seems to involve profit maxirnisation—a concept entirely foreign to her, I imagine, in educational circumstances.

Let me outline our difficulties. What is the alternative? The noble Baroness kindly suggests "relevant authorities". We consider that unacceptable. There is no precise legal definition of the term "relevant authorities". Within Clause 3 "authorities", "relevant child" and "relevant bodies" are defined terms but there is no definition of "relevant authorities". If the amendment were to be accepted, the term "relevant authorities" would be open to various interpretations and could be held to mean a number of different things.

I do not regard "proprietor" as the most elegant word. The clear advantage of the word is that it has a clear and precise meaning in education law and is not open o such misinterpretation. That is why it appears in the Bill.

I accept that in Committee we indicated that we would think further about the point. The noble Baroness referred to the addition of "or head teacher". We shall consider that further and bring forward a suggestion at Third Reading. I accept that "proprietor" does not have the most attractive ring to it. However, the noble Baroness's solution to the problem is flawed. Regrettably, I am unable to accept her contention. I hope that in the light of the assurance of further work on our part the noble Baroness will feel able to withdraw the amendment.

8.45 p.m.

My Lords, the Minister said with an absolutely straight face, "We have been doing this since 1944". It is wrong. It has ceased to have meaning. I suspect that in 1944 there were a fairly large number of profit-making schools with a proprietor—but no longer. The world changes. If the government of the day are asked why they have changed a policy the answer is that the world has changed and they have to change and develop with it. To say, "We have done this since Noah was a lad", has no intellectual validity.

It is interesting that the noble Lord took me to task over "relevant authorities". That appears only in Amendments Nos. 37 and 39, and relevance would be the consideration. Amendment No. 35 refers to "governing bodies". Amendment No. 59 refers to "the headteacher or the governing body". Amendments Nos. 97 to 99 refer to "governing body". Amendments Nos. 156 to 158 specifically refer to,
"governing body, trustees, or proprietor"
where that is appropriate. They are tailored to the part of the Bill. The amendments use the words which are specific to the clauses and the schedule.

To ask, "Who knows what is a relevant authority?" is not an impressive argument. I suspect that neither LEAs nor the Minister would have difficulty on that.

The answer was unimpressive. In Committee the Government promised an amendment but have not brought one forward. They promise one on Report. I wonder how serious they are this time. I commend the amendment.

8.48 p.m.

On Question, Whether the said amendment (No. 35) shall be agreed to?

Their Lordships divided: Contents, 31; Not-Contents, 95.

Division No. 4


Astor, V.Kingsland, L.
Astor of Hever, L.Knight of Collingtree, B.
Blatch, B.Lucas, L.
Burnham, L. [Teller]Luke, L.
Carnegy of Lour, B.Lyell, L.
Noakes, B.
Dean of Harptree, L.Norton of Louth, L.
Dixon-Smith, L.Park of Monmouth, B.
Elliott of Morpeth, L.Renton, L.
Fookes, B.Saltoun of Abernethy, Ly.
Glentoran, L.Seccombe, B.
Hanham, B.Selborne, E.
Henley, L. [Teller]Shrewsbury, E.
Hooper, B.Skelmersdale, L.
Howe, E.Stodart of Leaston, L.
Jenkin of Roding, L.Strathclyde, L.


Acton, L.Barker, B.
Addington, L.Bassam of Brighton, L.
Ahmed, L.Bernstein of Craigweil, L.
Alli, L.Billingham, B.
Amos, B.Blackstone, B.
Andrews, B. [Teller]Blease, L.
Ashley of Stoke, L.Borrie, L.
Ashton of Upholland, B.Bragg, L.
Bach, L.Brennan, L.

Brookman, L.Judd, L.
Burlison, L.Lea of Crondall, L.
Carter, L. [Teller]Lockwood, B.
Clarke of Hampstead, L,Lofthouse of Pontefract, L.
Cocks of Hartcliffe, L.Macdonald of Tradeston, L.
Craigavon, V.Mackenzie of Framwellgate, L.
Crawley, B.Mackie of Benshie, L.
Darcy de Knayth, B.McNally, L.
David, B.Maddock, B.
Davies of Coity, L.Mar and Kellie, E.
Davies of Oldham, L.Morris of Castle Morris, L.
Elder, L.Morris of Manchester, L.
Evans of Temple Guiting, L.Nicol, B.
Evans of Watford, L.Oakeshott of Seagrove Bay, L.
Farrington of Ribbleton, B.Parekh, L.
Filkin, L.Patel of Blackburn, L.
Fyfe of Fairfield, L.Plant of Highfield, L.
Gale, B.Ramsay of Cartvale, B.
Geraint, L,Razzall, L.
Gibson of Market Rasen, B.Rea, L.
Gordon of Strathblane, L.Richard, L.
Goudie, B.Sewel, L.
Gould of Potternewton, B.Sharp of Guildford, B.
Grabiner, L.Smith of Gilmorehill, B.
Grenfell, L.Smith of Leigh, L.
Hamwee, B.Symons of Vernham Dean, B.
Harris of Haringey, L.Thomas of Gresford, L.
Harris of Richmond, B.Thomson of Monifieth, L.
Harrison, L.Tordoff, L.
Hayman, B.Turnberg, L.
Hilton of Eggardon, B.Wallace of Saltaire, L.
Hogg of Cumbernauld, L.Walmsley, B.
Hooson, L.Warwick of Undercliffe, B.
Howells of St. Davids, B.Wedderburn of Charlton, L.
Hoyle, L.Whitaker, B.
Hughes of Woodside, L.Whitty, L.
Hunt of Kings Heath, L.Wilkins, B.
Islwyn, L.Williams of Crosby, B.
Williamson of Horton, L.

Resolved in the negative, and amendment disagreed to accordingly.

8.58 p.m.

[ Amendment No. 36 not moved.]

Clause 3 [ Resolution of disputes]:

[ Amendment No. 37 not moved.]

moved Amendment No. 38:

Page 4, line 17, at end insert—
("( ) "Independent persons" appointed in accordance with in subsection (3) above means persons with no previous connection with the parents and the child, nor of any of the authorities involved in the dispute, and such persons shall have knowledge and experience relevant to the special educational needs of the child.")

The noble Baroness said: My Lords, the amendment would make it explicit that the independent persons comprising the appeals panel should be competent in the matter of the dispute and truly independent. It is a straightforward and clear addition to the clause.

The only comfort that we received in Committee from the noble Lord, Lord Davies of Oldham, on the issue was that such independent people will receive training, financed by the Government, and that a code of practice will give guidance as to who an independent conciliator should be. Elsewhere, the noble Baroness, Lady Blackstone has advised that the code of practice shall not be published until after the Bill becomes law. From what we gather of the consultation on the code of practice, it will be a long time after the Bill becomes law, so that is not much help to us in getting the definition of independence correct.

I suspect that anybody who wants the body to be truly independent wants people who are already competent and experienced and have knowledge of the special needs in question, not people who still need training to bring them up to scratch. If the Government know how to define what the independent conciliator should be in a code of practice, then they should put that into the body of the Bill. However, if, as I suspect, they have not thought about it, then I still propose that my amendment adequately and properly defines what we mean by independent persons and that remains true whether or not the code of practice is subsequently published.

It is going to be important work. It deals with the most sensitive of queries. It also deals with quite a great deal of distress. Vested interests on all sides, whether it is parents, the LEA or the schools, should not be compromised by someone who is not independent and who could be deemed to be partial to one body or another. It is such an important principle. It would cost absolutely nothing to concede that the principle of independence is established not in the code of practice, which we are not going to see for months after the Bill is passed, but actually on the face of the Bill because it is a first principle, which is very important. I beg to move.

My Lords, this amendment fills in what is really a gap in Clause 3. The expression "independent persons" could mean almost anything. This amendment describes the people concerned as independents with responsibility given under subsection (3) in the resolution of disputes. It should be defined as people who are without any kind of commitment or prejudice. Therefore, I hope that the Government will consider my noble friend's amendment very sympathetically.

My Lords, this amendment calls for the independent person to have no previous connection with the parents and the child nor with any of the authorities involved in the dispute. Unfortunately, we believe that that would be unworkable. It would debar any independent person who had already dealt with a school or an authority from dealing with that school or authority again. It would create something of a nightmare scenario for the new services which would continually have to seek out and train new and independent persons to work with local authorities.

Parents responding to our consultations on the Green Paper and this Bill have already clearly signalled to us that they want a degree of independence in the new arrangements. We also want these persons to be independent and that is why the code of practice will set out the qualities an independent conciliator will need and the minimum standards we expect dispute resolution services to have.

What is already clear is that in meeting these standards LEAs will have to ensure that the independent person has no role in the decision taken about a particular child's case nor any vested interest in the terms of the settlement, is unbiased, maintains confidentiality, carries out the disagreement resolution quickly and according to the timetable decided by the parties involved, and has the appropriate skills, knowledge and expertise, including a good understanding of SEN processes, procedures and legislation. Having said all that, I hope that that is of some help to the noble Baroness and that, having heard these reassurances, she will be able to withdraw her amendment.

My Lords, perhaps I may first thank my noble friend Lord Renton for reinforcing the importance of independents in these matters. I am prepared to concede to the Minister that my wording may not be right. I can to some extent accept the point that the noble Baroness made about there being absolutely no connection whatsoever with the parents and/or the child or with any of the authorities. Therefore, I am open to a change of wording, but the principle of qualifying independence on the face of the Bill seems to me to be such an important point that it should be addressed. I rather hoped that the Government would accept that principle and would bring forward an amendment that was workable.

The Minister said that LEAs would choose someone who had no role in the case. But that is not going to be a defence against partiality. One may well have someone who has absolutely nothing whatever to do with the case, but is partial generally to local authorities or may be partial on the other side of the argument; namely, towards the parents or the school and may have antipathy towards local authorities. It is independence that is needed from the local authority, the individual school and, as the noble Baroness has conceded, in respect of the case itself. It is a matter of principle.

I hope that the Government will reflect on what they have said. I shall certainly read again what the noble Baroness has said. Some qualification of independence for people doing this work should be established on the face of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[ Amendment No. 39 not moved.]

moved Amendment No. 40:

Page 4, line 44, after ("324",) insert—
("( ) an independent school named by the parents of the child.").

The noble Baroness said: My Lords, when we last discussed this amendment the noble Lord, Lord Davies of Oldham, after some discussion, accepted the point that I made; namely, that if, as part of an existing dispute, the school in question is the independent school preferred by the parent, even if not named in the statement, then that is the relevant school in the context of Clause 3.

However, the noble Lord continued by asserting that my amendment was defective because he could interpret it differently, but promised to look at the matter again. I now ask whether the noble Lord has done so and, if so, what is the outcome. It still seems to me that the amendment is not defective, and at Committee stage no-one else seemed to put any interpretation on the amendment other than the straightforward one defined in the clause as to what is meant by the relevant school in any dispute. That would be the school at the centre of the dispute, be it a maintained school or an independent school named in the statement or, as the amendment would have it, the independent school not named in the statement but chosen by the parents. It is still a dispute to be resolved by the LEA under the terms of the clause. I beg to move.

My Lords, Amendment No. 40 seeks to give parents who wanted an independent school named in their child's statement, but the LEA did not agree, access to the new dispute resolution arrangements. I can assure noble Lords that that will be the case. In these circumstances the dispute is between the parent and the LEA, not between the parent and the school. Disputes between parents and LEAs are provided for under Clause 3(1) of the Bill. There is no question of the parent in dispute with the LEA in these circumstances not having access to the new arrangements.

I believe that the noble Baroness was also concerned that where parents were in dispute with an LEA about an independent school placement for their child the school named by the parent should be part of the dispute resolution process. There is no need for independent schools to be involved at that stage because they will not have to take the child if named in the statement. Generally speaking, independent schools are free to refuse to admit any child. That is not the case for maintained schools, which therefore need access to the dispute resolution process at an earlier stage.

In the light of my comments, I hope that the noble Baroness will withdraw the amendment. Having reflected on the matter, the Government do not believe that there is a need for change in this context.

My Lords, there is nothing surprising in that response—it will be a repeated theme throughout the course of our debate.

There is a flaw in the noble Baroness's argument. She said that if a parent has named an independent school that is part—perhaps the central part—of a dispute, he or she will not have to negotiate with the school or even bring it into the conciliation process because it is not the school that is named in the statement. However, at that point in the negotiations, the parents are trying to resolve a problem. The resolution may be that the parents get their preference. The school that is preferred by the parents is as much a part of the process as is the school that is named in the statement.

If the dispute centres on a preference that is expressed by the parents—the Government make it clear in the Bill that they wish to take parents' wishes into account—and if an LEA says, for example, that the placement is not available or appropriate, there would be a good reason for involving the independent school in part of those proceedings. Only in that way could a genuine judgment and assessment be made of the relevant provisions; namely, those involving the school, which may be a non-maintained school, that is preferred by the parents, and those involving the maintained school, which is, for the purposes of my hypothesis, a school in the maintained sector. The noble Baroness's argument simply does not hold water. Will she explain her statement that a non-maintained school that is preferred by the parents has no relevance?

My Lords, the independent school could give evidence and support the parents, but that school will not be a party. I can only repeat what I have already said; namely, that, generally speaking, independent schools are free to refuse to admit any child.

My Lords, the noble Baroness appears to be determining the outcome of the resolution before the whys and wherefores have been examined. The decision appears to be pre-judged against the independent school. Is the noble Baroness happy about pre-judging an outcome when a parent has made a preference for a non-maintained place? Such pre-judgment appears to be extraordinary. If she is arguing that the school could give evidence, why cannot it be party to the whole resolution process, even if at the end of the day it is decided that the placement in the school that is preferred by the parents is not appropriate, for reasons that would be given by professionals, the LEA and/or other bodies that are party to the dispute? That could be part of the conciliation process.

My Lords, the dispute is between the LEA and the parents, so there is no pre-judgment. I cannot be any clearer than that.

My Lords, that is deeply depressing. The dispute is between the parent and the LEA because the parent has made a choice, in the example that I gave, for an independent school. The noble Baroness said, "In relation to the conciliation service, we want to resolve disputes before they go to tribunal, but we shall keep out of the picture the very school that is central to the complaint that is being made by the parent". If that is what the noble Baroness is saying, it is quite wrong. I reserve my right to return to this matter at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 [ Compliance with orders]

moved Amendment No. 41:

After Clause 4, insert the following new clause—


(". If the governors of a mainstream school object to the proposed admission of a pupil who has special needs on grounds of inadequate facilities for that pupil in that school, or inadequate or insufficient staffing for that pupil in that school, the governors' objections shall be sustained until such time as the Local Education Authority has—

  • (a) made the appropriate extra provision to that school, or
  • (b) until the Tribunal has ruled that the existing provision is satisfactory for that pupil:")
  • The noble Baroness said: My Lords, even if the parents of a child and the LEA want the child with SEN to be admitted to a mainstream school, it is still necessary for that school to be able to cope with that child's needs and for those immediately responsible for that school—the governors—to be satisfied that they can cope. It would therefore be right, in terms of the school, the children who are already in the school and the child with SEN, for there to be adequate facilities and staffing before the child with SEN was admitted. It is therefore right for the governors to be able to object and to have their objections sustained if the facilities and/or staffing are inadequate. That objection should continue to be sustained until the extra provision that is necessary has been made by the local authority. It will not be sustained if it is challenged and found to be wanting—the Bill allows for that. My argument is simply that when such objections are made and the supporting evidence is sufficiently robust, the objections should be sustained.

    However, in order to overcome the obvious abuse which could be thought to be pursued by the governors in the use of this clause, namely to falsely claim inadequate facilities or staffing, the clause also provides that the tribunal, upon examination of the needs of the child and the school's existing provision, could override the governors. I believe that is what they would do in such a situation. I beg to move.

    My Lords, I hope I am not being tactless when I say that whatever advice the noble Baroness, Lady Blackstone, has received, I hope she will bear in mind that this is a necessary new clause which fills a gap in the Bill. The Government have placed priority upon the opportunity of children with special needs being educated in mainstream schools, but if the governors of such a school really feel that they do not have the teaching facilities to deal with a pupil with special needs, surely there should be a way of dealing with the matter.

    This amendment fills a gap in the Bill and it is a very necessary amendment. I hope the noble Baroness will consider it sympathetically. If she feels that she cannot answer the matter fully tonight, I hope she will give an undertaking to consider it between now and Third Reading, because it really is important.

    My Lords, I recognise the strength with which this amendment has been supported, but it raises a very significant issue which I should like to present to the House at this stage.

    It appears that the amendment, placed as it is after Clause 4 which refers to compliance with tribunal orders, seeks to give governing bodies of mainstream schools a veto over the admission of children with statements of special educational needs if the school decides that it has insufficient facilities or staffing to meet a child's needs after the tribunal has made its decision on appeal. The amendment seeks to maintain that veto until such time as the LEA accedes to any demands for resources or the issue has been reconsidered by the tribunal and it has ruled that the existing provision which it has already considered is satisfactory for that child.

    If that is the case, the decision on appeal as to whether a school should be named in a child's statement is surely one for the tribunal, not for the governing body after the hearing has taken place and a decision has been made. When a parent makes an appeal to the tribunal the tribunal takes evidence from the parent and from the LEA and its witnesses before giving a decision. The LEA has to back up its decision that the school can make the special educational provision that the child needs, with support as necessary from the LEA itself.

    As part of that process, the tribunal will consider information from a school concerning the provision it is able to make for the child, as supplemented by the LEA. It is certainly not uncommon for the school to present evidence directly to the tribunal and for the tribunal to question the school about the provision it is able to make for the child. If the tribunal believes that the school cannot make appropriate provision without additional support being provided, it can make an order precisely to that effect and the LEA is obliged to comply.

    However, the effect sought by this amendment is already achieved by the tribunal hearing and the decision. It would surely be inappropriate for school governing bodies to have a veto over the decisions of the tribunal and for additional work and unnecessary delay to be built into the appeals system because of the appeal from the parent.

    My Lords, it may be that I need more advice about the drafting of this amendment, but the wording of paragraph (b) in the amendment says:

    "until the Tribunal has ruled that the existing provision is satisfactory for that pupil".It does not say "after the tribunal has ruled".
    It is prior to the tribunal's ruling. The noble Lord has responded to me on the basis that the tribunal has completed its work, it has made the decision about the child and the school. If that is the case, of course in law the school has no option but to take the child. Placing this new wording after Clause 4 may be putting it in the wrong place. I accept that, but it is not after the tribunal. It is separate from that.

    It is saying, as a free-standing clause, that if the governors of a mainstream school object to the proposal—the normal procedure would be for an LEA to propose—that a child should be admitted to a particular school, and the school objects on the grounds that it does not have the facilities for that pupil and has inadequate or insufficient staffing, then its objection shall be sustained until the LEA has either provided extra funding or extra provision or until the tribunal has ruled.

    One can only imagine, if that is a genuine reason put forward by the school, that the tribunal will not send a child to a school that does not have the staff or the facilities to cope. Part of its determination may be to instruct the LEA to make funds available so that the child can be accepted at that school, but it will be for the tribunal to rule afterwards. The whole of the Minister's response was predicated on the wrong understanding of my amendment.

    My Lords, if it was predicated on the wrong premise in relation to tribunals that is, as the noble Baroness has indicated, because of where she has chosen to locate this new clause. Let us look at her argument which gives a much wider intent behind the amendment. It appears to be designed to give school governing bodies a veto over the naming of their school in a child's statement if the school disagrees with the LEA as to the provisioning that is required. That would mean that LEAs would have all the responsibility for making and maintaining the statement, but no power to make the final decision because the school would object. Surely, that cannot be right.

    Of course, LEAs are required to consult schools that they are considering naming in a statement, and, as a result of our Amendment No. 152 to which I referred earlier, they will be required to send them a copy of the draft proposed statement or proposed amended statement for a child. That will ensure that there is a full and informed discussion and will encourage, as far as possible, agreement on any additional provision that the LEA may be expected to make over and above that which the school can provide.

    At the end of the day, the LEA has to satisfy itself that the school can make the provision needed for a child before it names that school in the statement, as it has a statutory duty to arrange the provision and maintain the statement. Having regard to the way in which the noble Baroness has presented the issue, effectively this amendment would take the capacity for decision making away from the LEA while leaving it with the statutory duty.

    My Lords, I believe that the Minister and I are living on two completely different planets. Having regard to what I said, that is a completely incorrect premise. Nothing in my amendment prevents the naming of a school; there is no question of a veto in relation to the naming of a school. Perhaps I can suggest that the Minister ignores the notes being handed to him and takes note of what I have said.

    I am talking about a school that genuinely receives a child as a result of a statement that names the school; I am not talking about one that abuses the system. It is not a veto in relation to the naming of a school. A child may be sent to a school where the school genuinely says that it does not have the staff or the facilities to make provision for the child. That statement is either true or it is not. For the sake of my scenario, let us assume that that is a genuine reason why the school cannot take the child. My amendment simply says that the school should appeal to its LEA—that is the only funding stream for a school in that position—for extra provision so that that school can do its best by that pupil, or it can stand out with its objection, the LEA can refuse to give it any funds and it can have that tested at tribunal. That neither pre-empts the tribunal, nor brings about a veto over the naming of a school. I really do not know how I can explain the matter more clearly.

    The noble Lord does not appear to want to say how he has come to his view in relation to a veto over the school. I would like the Minister to say what in my amendment gives the school a veto over the naming of a school. What is the wording in my amendment that achieves that? I wish to test the opinion of the House.

    9.25 p.m.

    On Question, Whether the said amendment (No. 41) shall be agreed to?

    Their Lordships divided: Contents, 23; Not-Contents, 86.

    Division No. 5


    Blatch. B.Kingsland, L.
    Cox, B.Knight of Collingtree, B.
    Dean of Harptree, L.Lucas, L.
    Dixon-Smith, L.Luke, L.
    Lyell, L.
    Elliott of Morpeth, L.Norton of Louth, L.
    Fookes, B.Park of Monmouth, B.
    Glentoran, L.Renton, L.
    Hanham, B.Seccombe, B. [Teller]
    Henley, L. [Teller]Selborne, E.
    Howe, E.Skelmersdale, L.
    Jenkin of Roding, L.Strathclyde, L.


    Acton, L.Davies of Coity, L.
    Addington, L.Davies of Oldham, L.
    Ahmed, L.Elder, L,
    Alli, L.Evans of Temple Guiting, L.
    Amos, B.Evans of Watford, L.
    Andrews, B. [Teller]Farrington of Ribbleton, B.
    Ashley of Stoke, L.Filkin, L.
    Ashton of Upholland, B.Fyfe of Fairfield, L.
    Bach, L.Gale, B.
    Barker, B.Geraint, L.
    Bassam of Brighton, L.Gordon of Strathblane, L.
    Bernstein of Craigweil, L.Goudie, B.
    Billingham, B.Gould of Potternewton, B.
    Blackstone, B.Grabiner, L.
    Blease, L.Grenfell, L.
    Bragg, L.Harris of Haringey, L.
    Brennan, L.Harris of Richmond, B.
    Brookman, L.Hayman, B.
    Burlison, L.Hilton of Eggardon, B.
    Carter, L. [Teller]Hogg of Cumbernauld, L.
    Clarke of Hampstead, L.Howells of St. Davids, B.
    Cocks of Hartcliffe, L.Hoyle, L.
    Craigavon, V.Hughes of Woodside, L.
    Crawley, B.Hunt of Chesterton, L.
    Darcy de Knayth, B.Hunt of Kings Heath, L.

    Islwyn, L.Richard, L.
    Judd, L.Rix, L.
    Lockwood, B.Sewel, L.
    Lofthouse of Pontefract, L.Sharp of Guildford, B.
    Macdonald of Tradeston, L.Smith of Gilmorehill, B.
    Mackenzie of Framwellgate, L.Smith of Leigh, L.
    McNally, L.Symons of Vernham Dean, B.
    Maddock, B.Thomas of Gresford, L.
    Mar and Kellie, E.Thomson of Monifieth, L.
    Morris of Castle Morris, L.Tordoff, L.
    Morris of Manchester, L.Turnberg, L.
    Nicol, B.Wallace of Saltaire, L.
    Oakeshott of Seagrove Bay, L.Walmsley, B.
    Parekh, L.Warwick of Undercliffe, B.
    Plant of Highfield, L.Wedderburn of Charlton, L.
    Ramsay of Cartvale, B.Whitaker, B.
    Razzall, L.Wigoder, L.
    Rea, L.Wilkins, B.

    Resolved in the negative, and amendment disagreed to accordingly.

    9.35 p.m.

    Clause 5[ Unopposed appeals]:

    [ Amendment No. 42 not moved]

    moved Amendment No. 43:

    Page 5, line 20, leave out ("withdrawn") and insert ("granted to the parent").

    The noble Baroness said: My Lords, when we discussed this amendment previously, the noble Baroness, Lady Blackstone, and I agreed at least on one point: that we were dancing on the head of a pin. Unfortunately, there were no angels on the head of that pin and, in spite of our temporary agreement, the issue is more than merely academic.

    The parents and the LEA have a dispute which goes to the tribunal for resolution. The parents have made their appeal against the LEA's decision, whatever that was. There is now an appeal in existence and it is before the tribunal. Before the appeal is resolved one way or the other by the tribunal, the LEA concedes the parents' wishes. In any commonsense use of the word, the parents' appeal has been granted to them and they have won the argument. The appeal has not been withdrawn by the parents; it has not been withdrawn by the LEA; it has not been withdrawn by the tribunal. It has been won by the parents; or, to use more legislative language, it has been granted to the parents—granted in fact by the LEA, but granted nevertheless. This is not merely a matter of semantics. It is important for a family to know that when they took their case to appeal they came away successful. The fact that the LEA has had to concede before the matter goes any further seems to be masked.

    If the appeal is to be treated as having been withdrawn, as the clause would have it, that might mean that the LEA would no longer oppose the parents. But it does not necessarily mean that. If, on the other hand, it is to be treated as having been granted to the parents, it certainly will mean that the LEA can no longer oppose the parents. The noble Baroness said nothing in Committee which alters the need for the amendment. Therefore, I beg to move.

    My Lords, I, too, support the noble Baroness, Lady Blatch. There is very good reason for parents to be totally confused by the present wording. I hope that if the noble Baroness's amendment cannot be accepted, the Minister will come back with suitable wording at Third Reading.

    My Lords, the amendment deals with the treatment and classification of appeal cases which are withdrawn because the LEA decides not to oppose the appeal. The amendment would treat these types of cases as decisions upheld in favour of the parent.

    The clause already provides for the LEA to meet the parents' wishes within a period to be set out in regulations, when the LEA has conceded the parents' case. However, I shall not claim the status of an angel. We recognise that this may not be immediately obvious from the way the clause is drafted. We shall, therefore, consider how the clause might be amended to make this more obvious and introduce an amendment at Third Reading. The effect would be to make clear that where LEAs do not oppose a parent's case, this is to be treated as the appeal having been resolved in the parent's favour. The amendment will also make it clear that in such cases the tribunal will not have to make an order to this effect, thus avoiding unnecessary bureaucracy.

    My Lords, I do not know whether that reply was a result of the intervention by the noble Lord, Lord Rix. At least the Government can save face and say that they have been persuaded by him rather than by me. I am grateful for the Minister's response.

    I do not know whether I heard the Minister correctly—I believe I did, and a nod will suffice. Did she say that the amendment will make it clear that the case was resolved in the parents' favour? The noble Baroness nods. Then I am entirely satisfied with her response. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn

    moved Amendment No. 44:

    Before Clause 7, insert the following new clause—


    (". The code of practice shall require that all pupils with special educational needs, with statements and without, shall be set clear objectives concerning academic progress, including progress in reading, against which the provision specified or provided shall be monitored and reviewed.").

    The noble Baroness said: My Lords, this is an amendment about which I feel very strongly. I have always believed that, from wherever a child starts and however profound the learning difficulties are, making progress is at least one of the primary aims of education. I gave some moving examples of an experience I had when I visited a special school in the North East where the staff believe that all children, from whatever basis they start, make progress and that such progress should be recognised, should be recorded, and should be systematic.

    But it is also the case that many young people—particularly as part of this Bill deals with people with physical disabilities, as well as the part which deals with young people with mental disabilities and learning difficulties—can make enormous progress academically in school. If it is right that all young people in mainstream schooling without special needs should have records of achievement, of progress, aims and objectives, targets set and clear objectives in making academic progress, as well as the other progress one would record—noble Lords may refer to Hansard in Committee for examples; I shall not labour them tonight as the hour is late—it must be right that young people with SEN should also have that progress and so forth recorded.

    This is an important point. The aims, the objectives, the targets and the progress made should be measured against provision specified or provided, and that progress should be monitored and reviewed. We owe it to all young people, from whatever basis they start, to do that. Making progress is important to them; it is one of the primary aims of education. I beg to move.

    My Lords, I entirely support my noble friend. I add that if there is such a system—there should be such a system for all pupils—in order to make it work properly it is essential that there should be national standards against which progress can be compared. That is difficult to achieve with special educational needs. It will take some research. But if we do not have standards against which to compare progress, it is possible to lower our expectations to the point where they are easy to achieve.

    It is one of the great things that has been achieved in value-added measurements in examinations as a whole—the great efforts made by Durham University, as it is now, with ALIS, MidYIS and YELLIS—to produce national standards against which value-added can be measured. We need to do the same thing with special needs if we are to make a valid system of comparators to judge the sort of process which my noble friend is advocating.

    My Lords, our view is that Amendment No. 44 is unnecessary. Good teaching should involve the setting of objectives and monitoring how well a child is progressing against those objectives. That applies to the teaching of children with SEN as much as it does to the teaching of other children. In that regard I agree with the noble Lord. Lord Lucas.

    The current code of practice already advises schools that individual education plans (IEPs) for children at stages 2 and 3 of the school-based stages of the code should include,
    "targets to be achieved in a given time",
    and "monitoring and assessment arrangements". Even at stage 1 of the current code, which we are proposing should be dropped when the revised version comes into effect, the code advises that in agreeing the aims of the SEN provision, teachers should record the targets which are to be achieved and the monitoring arrangements. The revised code, on which we consulted, also advises that IEPs should include short-term targets for the child. Practical guidance which will accompany the final version of the revised code will give further advice on the writing of IEPs. In addition, the current SEN regulations require statements of SEN to include objectives and monitoring arrangements to check progress on those objectives.

    The amendment makes particular reference to monitoring progress on reading. Progress on reading is, of course, important for all children—I agree with the noble Baroness, Lady Blatch, in that regard. But we are already addressing this through the National Literacy Strategy.

    Noble Lords will be interested to know that the teaching of reading among pupils with learning difficulties has been commented upon recently by the Office of Her Majesty's Chief Inspector of Schools, whose report, The National Literacy Strategy in Special Schools, noted that,
    "in all schools [in the survey] pupils had made at least sound progress in the development of their literacy skills".
    The report concluded that,
    "teachers reported a marked improvement in the pupils' concentration, behaviour and attitudes to study, especially with regard to reading".
    The strategy has had particularly beneficial effects for children with SEN. For example, we know from the National Literacy Project, which preceded the National Literacy Strategy, that children at the first two stages of the SEN code generally make the most gains, suggesting that the strategy may actually prevent some children from developing SEN.

    In the light of what I said, I hope that the noble Baroness, Lady Blatch, will feel able to withdraw the amendment.

    That reply was mostly helpful. I should certainly like to read carefully what the noble Baroness said. In Committee, I quoted from the letter written by David Blunkett to colleagues, which is worth repeating. He said:

    "We will also stress the need for statements to set out broad objectives against which the child's progress, and the provision being made, can be monitored and reviewed".
    I link that point with the one made by my noble friend that, however difficult it is, progress should be measured against certain standards. That should not be beyond the wit of those with the professional expertise to accomplish it.

    Despite what the noble Baroness said about what has been achieved, we know that because expectations for children with special needs are not always as high as they should be, too many under-achieve. It is for that reason that the provision should be more formally stated somewhere. My amendment refers to the code of practice and, if I heard the noble Baroness correctly, that is exactly where the provision will go. So there will be something explicit in the code of practice.

    My final point is a positive one. There are those who think that because children have special needs one should not bother with such aims and objectives for them. I argue the other way. I believe that such a measure can be one of the greatest motivators. My experience of visiting special schools is that working in partnership with schools to achieve some of the aims and objectives motivates families. Many young people with special needs work in partnership with the staff of the schools, parents, families and peer groups.

    There is a strong argument for the amendment. I believe that the noble Baroness, if a nod will suffice, has agreed that my amendment will be accepted and will be included in the code of practice. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    9.45 p.m.

    Clause 7 [ Duty to inform parent where special educational provision made]:

    moved Amendment No. 45:

    Page 6, line 5, at beginning insert—
    ("( ) The parent of a child for whom no statement is maintained under section 324 shall be informed before special educational provision is made for him.
    ( ) If the parent objects to such provision being made as being unnecessary or inappropriate, the dispute shall be resolved as provided for in section 3 of this Act, and until it is resolved, the special educational provision shall not be made.").

    The noble Baroness said: My Lords, in moving Amendment No. 45, I shall also speak to Amendments Nos. 46 and 47.

    These amendments seek not only to put parents in the picture, but to restore their responsibility for their children. We trust that this House, the Government, local authorities and schools all have the best interests of the child in mind. We should have liked that to be included in the Bill. We even risk being paternalistic in our efforts to help children with special needs. Such compassion, however, must not obscure the fundamental fact, which some may find uncomfortable but which in a free society remains paramount, that the prime responsibility for a child rests not with the school, the local authority, the Government or the House, but with the parents. If there are no parents, the legal guardians are responsible.

    We can advise and cajole a parent as to what we think is in the best interests of that child, but we must not take away the legal and the moral authority of a parent to decide what is best for his or her child. Only in certain extreme circumstances of parental abuse or neglect does the law provide for the state to take away that parental responsibility. It therefore follows that no matter how inconvenient it might be for the school, the child psychologist, or anyone else for that matter, the parent should first be informed of any educational provision that is related to perceived special educational needs before that special education is applied to the child. The parent should be entitled to challenge and, if necessary, object to such provision if, for whatever reason, the parent disapproves. We might all disagree with the parent's judgment, but we are not entitled to substitute our own judgment for that of the parents. As I said, only in extreme circumstances does the law allow us to override parental responsibility.

    My first amendment simply seeks to write into the Bill that the parent must be informed before provision is made and must be entitled to object and until the objection is resolved, the provision should not be made.

    The noble Lord, Lord Davies of Oldham, made quite a chilling reply and I found it even more chilling when I read it again in Hansard. The noble Lord said:

    "The problem with the amendments is that they appear to give parents the right to object to special educational provision to meet their children's needs".

    Later on, the noble Lord said:

    "However, it cannot be right that parents should be given a veto over the SEN provision that schools make for their children".—[Official Report, 29/1/01; col. CWH 124.]

    What if that provision turns out to be inappropriate or even downright wrong? Those remarks are almost Stalinist in the way they read in Hansard. The noble Lord's problem seems to be that parents may have the right to object to what they consider to be unnecessary, unhelpful or just plain wrong. But neither I nor the noble Lord has the right to trample on parents' rights which are important. No matter how inconvenient it may be to the professionals in the case and in the light of the noble Lord's reply in Committee, I emphasise all the more strongly that this amendment is necessary to restore parental rights so that they are given back their full responsibilities.

    The related amendments in other clauses do the very same thing: they restore parents' rights, first, to be informed and, secondly, to give their approval to such provision.

    My Lords, these amendments would hamper schools, nursery education providers and pupil referral units from making speedy responses to children's newly identified SEN and would trammel the exercise of teachers' professional judgment.

    I repeat what my noble friend Lord Davies of Oldham said in Committee. They would give parents a veto over the SEN provision to be made for their child. Were they to be accepted, they would establish arrangements whereby the SEN provision that children need would be at least delayed and could be denied because, for whatever reason, the parents have said that their children should not have it. They assume that in each and every case, parents' understanding of their children's educational needs is more fully informed and well-founded than that of their children's teachers.

    Regrettably, I do not believe that that is always the case. We must look to teachers and schools, working in accordance with the guidance that they receive from the SEN code, to identify children's special educational needs and intervene as soon as possible to ensure that difficulties can be addressed, if possible, before they become deep-seated. If parents object to their children being identified as having SEN because, perhaps, they feel that some stigma is attached to it, we should look to teachers and schools to work constructively with parents to address those concerns and to provide the reassurance that they seek—that the provision being made really is in the best interests of their child.

    The noble Baroness is concerned to ensure that parents know that their child has learning difficulties and are able to challenge any special provision that schools propose to make. The point of Clause 7 is precisely to ensure that the current position where a school can be making special provision for a child's SEN without the parents knowing about it will be a thing of the past. I very much accept that that is a desirable step forward.

    The code has a fundamental principle that,
    "the knowledge, views and experience of parents are vital",
    in ensuring that children's needs are met. It is because we support that principle that we are ensuring that all parents will be informed when their child is identified as having SEN and provision is being made for them.

    When schools inform parents, that will give parents the opportunity to comment on the provision that is being made and to raise any concerns that they have with the school. Clause 7 allows for speedy intervention and parental input. We should expect schools and other settings to inform parents as they begin to make special provision, and not some time afterwards.

    In Grand Committee, the noble Baroness drew back from saying that parents should be able to object to the provision being proposed for their child by saying that there should be a form of informal resolution procedure. Clause 3 of the Bill already provides for the resolution of disputes between schools and parents over the provision made for children.

    However, as I understand it, the noble Baroness is suggesting that resort to these resolution dispute procedures should be made in every case where the parents object to the suggested provision, and that such disputes should be resolved through the procedures before the provision is made. That would introduce an unnecessary level of bureaucracy into the arrangements. In every case, the school would have formally to notify the parents that it intends to make special provision, give the parents time to consider whether they want to challenge the provision and then wait to see whether the parents wish to do so

    Through the passage of the Bill, noble Lords opposite have spoken of the need to avoid unnecessary delay; indeed, that is something that the Government also wish to avoid. However, I believe that this amendment would introduce delay. Therefore, I ask the noble Baroness to withdraw it.

    My Lords, the Minister's reply is quite baffling. The noble Baroness is arguing that somehow or other this would be a delaying tactic; that it would take too long; and that, therefore, if there is a resolution, it cannot in every case be informally resolved. As the noble Baroness will remember, I welcomed the process being set up by the Government. I thought it was important for us to do what we could to prevent cases going to a tribunal because, at the end of the day, that is much more costly and incurs much greater delay. I understood that it would be done informally.

    However, the Minister is now suggesting that this is a rather formal process and that very formal procedures have to be adopted. My understanding was that the conciliation was informal and that it was there to resolve disputes. The noble Baroness is asking me to accept that there will be some parents with issues that are not resolved who will not necessarily be subject to the provisions under Clause 3. I am totally puzzled by the Minister's response. Clearly—though now I believe rather naively—I have gone along with an understanding of what that conciliation entailed; namely, that it was informal, local, much closer to the parents and would resolve issues that would prevent their having to go to a tribunal. It now appears that that is not the case. This is such an important issue that I shall return to it on Third Reading. I beg leave to withdraw my amendment.

    Amendment, by leave, withdrawn.

    [ Amendments Nos. 46 and 47 not moved.]

    10 p.m.

    Clause 8 [ Review or assessment of educational needs at request of responsible body]

    moved Amendment No. 48:

    Page 7, line 6, after ("body") insert ("or the parent of the child").

    The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 49, 50, 52 and 53. Other noble Lords will speak to Amendments Nos. 51 and 54, which are also included in this group.

    The Government's response to these amendments in Grand Committee betrayed yet again the philosophy that the local education authority knows best, and that the parents must do as they are told. All that the first of these amendments would do is to insert "the parent of the child" after the reference to "the responsible body" in paragraph (b) of new Section 329A(1), thus making him or her entitled to ask the LEA for an assessment of the child.

    Under the rest of the provision, once the governing body of the school has asked for an assessment, or reassessment, of a child, the LEA can be triggered into action. All I am asking for is that the parents should also be able to trigger the procedure. After all, it is the parents' child who may need the reassessment. It is not sufficient to say, as the noble Lord, Lord Davies, said elsewhere, that the parent can ask for the child to be assessed. It is in the context of Clause 8 of the Bill that it is necessary to match the authority of the governing body to ask for an assessment with that of the right of the parent to do the same.

    The consequential amendments that I have also tabled would oblige the LEA to get on and make the assessment when asked to do so by the governing body, or by the parent—or probably, in practice, by both. If it is a case of both, it seems to me to be even more important that that request should be met. At present, the Bill leaves it entirely to the discretion of the LEA as to whether or not to accede to the request for an assessment to be made. That is incredible, when one thinks about it. It means that the professionals at the school, or the parents of the child—who, of course, know the child intimately—have judged that an assessment needs to be made and yet the LEA, with no knowledge of the child and with no reassessments made, can nevertheless reject an application for a reassessment.

    In defending the absolute right of veto by the LEA, the noble Lord, Lord Davies of Oldham, said in Committee,

    "Depriving LEAs of the right to refuse to assess would also be a retrograde step. It cannot be accepted that every single request for assessment, either from parents or schools, is well-founded".—[Official Report, 29/1/01; col. CWH 129.]

    There could be examples of stupid governing bodies or stupid parents who capriciously ask for an assessment when there is no need for one. But because any system can be abused if one really wants to do so is no reason at all for denying the great mass of informed and honest people and genuinely concerned parents the right to have their judgment respected. After all, the request for assessment from a governing body or from a parent is founded on the evidence before them, whereas the LEA has at the time of the request no evidence at all upon which to found its decision as to whether or not to make a new assessment. It will have evidence as to what the last assessment made of the child was but it will not yet have any evidence as to what changes have since occurred to the child's assessment and, therefore, to the child's needs.

    If we are to have Clause 8 at all—I think that we should—the LEA has to become the servant of those who know the child and not their master. The LEA must assume that each request is well founded and get on with it, arranging and making the assessment. In the course of doing that, the odd request might well prove to be less than well founded. I might add that any school putting in a poorly founded request risks not being trusted in future on that or any other issue.

    The first and consequential amendments in the group put the parents back in the frame and put the LEA in the position of being obliged to respond to the request rather than having a discretion as to whether or not to do so. One other amendment of mine in this group seeks to cut the time which the LEA has to respond to the request. The Bill at present commits the LEA to have six months between receiving the request

    and making the assessment. My amendment proposes to cut that down to three months. I think that the noble Lord, Lord Davies, in his reply in Committee mistook the situation when he said,

    "Three months is just not long enough for any changes which there may have been to a child's special educational needs since a previous assessment to emerge properly".—[Official Report, 29/1/01; col. CWH 129.]

    The situation, in fact, is that before the six month period, or the three month period as proposed in my amendment, even starts, the child has been under observation by teachers and parents. As a result of such observation they have judged that the child's condition has changed—it could be for the better, it could even be for the worse—and that such observed change now needs a renewed formal assessment to be made. The three month period starts from the making of that request.

    What we seek from such a new assessment is a revision of the education provision which we make for the child. Having, through observation, judged that an assessment or reassessment is needed, the teachers, through the governing body or the parents, have asked for the assessment to be made. Under other amendments the LEA must then get on and arrange an assessment. Three months is plenty of time to do so. What the noble Lord seemed to think, judging from his response, was that any possible change to the child's condition started at the beginning of the six-month period and, thus, much of the six months would be needed to observe whether or not change was happening. I hope I have made clear that that is not the case. The changes perceived in the child have already occurred before the request for the assessment has been made; otherwise, the request for the assessment would not have been made. It is not up to the LEA to sit back to see what further changes might occur in the subsequent six months. By then a year or more may have passed.

    In responding to other amendments in Committee Ministers quite rightly emphasised the need and value of as early an assessment as possible for each child. The earlier we can identify a child's problem, the earlier it can be remedied. There is no need for the LEA to sit back for the best part of six months before getting on with the assessment. It is quite true that in the exceptional case where the child is rapidly going downhill in whatever learning difficulty he or she may have, several assessments might be needed in quick succession. That is no reason for giving six month periods of grace. On the contrary, I believe that it is a reason for acting even more quickly.

    On Amendment No. 49, in Committee the noble Lord, Lord Davies of Oldham, gave a most detailed response to a series of amendments which amounted to a concern that the reassessment of a child's statement should be made as quickly as possible following a request for that reassessment to be made. That response amounted to agreement that any reassessment needs to be made as quickly as possible in order that the provision for the child can be altered to meet the needs shown by the reassessment.

    Our discussion at that time highlighted the frequent need for reassessment upon transfer, particularly from primary to secondary school. The noble Lord did not explain why in Clause 8 the LEA was given a full six months between a request for reassessment to be made and that reassessment having been made. Six months is too long. All the other provisions, guidelines and so on, requiring quick decisions, to which the noble Lord referred, can be overridden by the LEA in this simple requirement in Clause 8 to allow a full six months to pass before the assessment is made.

    I ask again: why six months? Why not three months or less? Why not a statement within at least seven days of the request being made as to how and by whom the reassessment is to be made and with a clear schedule of the expected timescale for that reassessment? I beg to move.

    My Lords, although Amendment No. 54 is not within this group, the Minister knows what it is about. If the noble Lord chooses to reply to the amendment so that I do not have to move it, he is welcome to do so.

    My Lords, I shall indeed address my remarks also to Amendment No. 54. I begin with the amendments which the noble Baroness moved and to which she has spoken. We discussed the issues at length in Committee. We stated that the amendment is unnecessary because, as the noble Baroness well knows, Section 328 of the Education Act 1996 gives parents the right to request assessments for their children. Therefore if Amendment No. 48 is linked to Amendment No. 49, it would mean that the statutory interval between requests for assessment of children by schools and parents would be three months instead of six. The noble Baroness asserts strongly that three months is long enough. I do not believe that to be the case.

    For children whose previous assessments had led to statements, the amendment would mean that their parents or school could request reassessments within two weeks of receiving the final statement. For children where the LEA had refused a request to assess, it would mean that the parents or school could make a new request within six weeks of the refusal, which would not be time enough for the child's needs or circumstances to have changed significantly. If three months were to be accepted, it would hold out the prospect—it was discussed in Committee—of a constantly revolving door of requests for reassessment with which LEAs would have to deal. We do not regard that as a sensible use of LEA officers' time.

    Of course, parents can appeal to the tribunal if they feel that an LEA is wrong to refuse to assess their child's special educational needs. Surely that is the most sensible way forward rather than continuous requests for assessment.

    Amendments Nos. 50, 52 and 53 would deprive LEAs of the right to refuse to carry out an assessment where a parent or a school requests it. We do not agree with the proposal. Not every request for assessment either from parents or schools is well founded. Although the majority are well founded, it is also possible for such requests to be ill founded. In consultation with parents and schools, LEAs can often show how a school working within its own budget can adequately meet a child's needs without going through the assessment and statementing process. Surely it is right that LEAs should continue to be allowed to exercise their judgment in deciding whether an assessment is necessary. When an LEA decides not to assess a child's special educational needs following a request from a parent, under Section 329 of the Education Act 1996 it is required to inform the parents of its decision. We intend to use the regulation-making powers in Schedule 7 to ensure that LEAs explain to parents why they have decided not to assess. The Bill imposes a similar duty in respect of decisions made following requests from schools.

    Amendment No. 54, which the noble Lord, Lord Lucas, wants to degroup, would allow LEAs to decide whether to assess a child within the period specified for parents to make their representations. In Committee, on 29th January, we agreed to respond in due course to the issues that the noble Lord raised on Amendments Nos. 76 and 78. He referred to possible delays arising from the specified arrangements set out in Clause 8. He also raised the potential for LEAs to decide on whether to assess and to get on with it if parents were happy for the decision to be made before the end of the specified period.

    We have carefully considered the noble Lord's comments and the amendment. I hope to clear up any misunderstanding about what LEAs can and cannot do during and after the specified period and any confusion that may have crept into our discussions about time limits in the regulations.

    The noble Lord, Lord Lucas, painted a picture of LEAs being able to extend the specified period for as long as they liked—I think that he suggested that they might even take two years—and not being able to do anything about a request for assessment from the school until the specified period had finished. That is not so. LEAs will not be able to specify unreasonable periods. We shall impose a six-week time limit on LEAs to tell parents whether they have decided to go ahead with an assessment following a request from a school. That is the same time limit as for requests received from parents. We shall not make regulations directly to limit the specified period—this is where confusion may have crept in—but LEAs will not be able to make the specified period longer than six weeks because they will have to have taken parents' representations into account before informing them of their decision.

    The specified period is not a period during which LEAs are unable to do anything about requests while they wait to see whether the parents are going to make representations. The only thing that LEAs are not allowed to do during the specified period is decide whether to assess. That ensures that the LEA is aware of any views that parents may wish to put forward before it makes its final decision. We expect LEAs to get on with requesting and taking advice from other sources than the parents during that period. That is what currently happens when LEAs are considering whether to make an assessment under Section 323 of the 1996 Act. That section also allows LEAs to specify a period of not less than 29 days for parents to make representations. LEAs would be unwise not to request and start considering advice during the specified period because they have to make sure that they are in a position to give the parents the decision within six weeks.

    In Committee, the noble Lord, Lord Lucas, clearly expressed his dislike of unnecessary delay. I share that feeling and I hope that he will accept that we want to ensure that no such thing occurs.

    My Lords, when he began his response, the Minister almost ridiculed this group of serious amendments and insulted the mostly caring and sensitive parents. Let me give some evidence for that. First, he said that the amendments would allow parents to require reassessment within two days of receiving a statement. That is an absolute absurdity. In order to produce evidence for assessment the first thing a parent would require is a period of observation of their own child. They would have had to notice a discernible change in the condition of the child and the situation in which the child finds itself. That would require perhaps some modified provision which would also need to have been observed sufficiently for the parent to be able to present a case for re-assessment. It is ridiculous to say that a parent could do that within two days.

    The noble Lord used two examples. He said two days and he also referred to six months. That is doing a great disservice to some very serious amendments and to situations which could be very real for the parents. The rest of the noble Lord's answer was predicated on what I thought was a monstrous caricature of the way in which parents would behave. I am singularly unimpressed by the noble Lord's response. These amendments are serious. The noble Lord, Lord Northbourne, is unable to be at present. He was also calling for a time limit. He will present his amendment on the next occasion. These amendments are so serious. I simply will not accept the tone and the wording of the reply that we have just received from the Minister. I shall certainly return to this matter at Third Reading. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendments Nos. 49 to 54 not moved.]

    10.15 p.m.

    moved Amendment No. 55:

    Page 8, line 13, leave out paragraph (b) and insert—
    ("(b) Any setting recognised by an early years development partnership set up by a local education authority under section 119 of the School Standards and Framework Act 1998.").

    The noble Baroness said: My Lords, I note that the Chief Whip is in the House. I have been constantly asked this evening what the plans are for the House

    rising. No one seems to know and not even my "usual channels" appear to know. I ask this for four reasons. First, there has to be a concern for the staff of the House. We all know that the House will be sitting at 11 o'clock tomorrow. The Hansard writers will have to return tomorrow and we should at least have some concern for them.

    Secondly, if we spend only five minutes on each of the amendments we have to deal with tonight, we would still be here for between three to four hours yet, with both the noble Baroness and myself involved in the first debate tomorrow.

    Thirdly, there is a discourtesy to the noble Baroness, Lady Darcy de Knayth who has a late amendment. I ask this for information. If the House intends to rise any earlier than at the very end of this list of amendments, then it would be a courtesy to her to know whether she need to wait for her amendment. It would be helpful to many people throughout the House, including members of staff, to know what the plans are for the rest of the evening.

    My Lords, I have offered an arrangement with the Opposition by which we can go home at 11 o'clock and finish the Report stage of the Bill on Monday. The Third Reading would be on Thursday, which was the date agreed originally some time ago. In the planning of this Bill we have tried extremely hard to accommodate the diary commitments of the noble Baroness. Unfortunately, the Opposition have felt unable to accept that offer. They believe that the interval must be maintained. This Bill is already a week late, which I can live with if it is delivered to the Commons next Thursday. But I cannot have the Government's programme decided by the Opposition. I have offered an arrangement. I am very concerned about the staff. There is an arrangement which will enable the House to rise at 11 o'clock or soon after, finish Report stage on Monday and complete Third Reading on Thursday.

    The noble Baroness is shaking her head. The reason why we are in this position—and I have the figures before me—is that 72 amendments have been brought at this stage by the noble Baroness. I understand that the Liberal Democrats brought back one and the noble Lord, Lord Baker, returned with two. The noble Lord, Lord Morris of Manchester, brought back one. There is no earthly reason why the Report stage of the Bill could not have been properly completed in a reasonable day's work today. The draft grouping presented to the noble Baroness yesterday had 49 groups. It was ungrouped by the noble Baroness and the noble Lord, Lord Lucas, who produced 65 groups. If we sit late tonight—I agree with the noble Baroness that if we do so, we shall sit very late—the responsibility will lie entirely with the Opposition.

    My Lords, I have several responses to that. First, I represent the official Opposition in the House and I am doing my job. The amendments that we have discussed today have been serious and some extremely serious points have been raised. Secondly, the noble Lord will be aware from our earlier exchange from the Dispatch Boxes that I was outside the loop that decided that the Bill's Committee stage should be held in the Moses Room. I do not know who decided that, but that decision meant that we were not allowed to bring any subject whatever to a resolution. Thirdly, the noble Lord, who has been in and out of the House all day, will know that many of the amendments were answered very unsatisfactorily in another place. We were promised that the Government would reflect on some amendments and return with different amendments on Report. Mostly, that has not happened. Fourthly, in relation to the statistics that the noble Lord quoted, the noble Lord, Lord Morris of Manchester, moved virtually no amendments during the Bill's Committee stage, and the Liberal Democrats brought forward very few amendments in Committee compared with the number of Liberal Democrat amendments that are before us now. We shall much later come to quite a number of Liberal Democrat amendments, many of which I shall support.

    It was wrong of the noble Lord to use those statistics in the way that he did. I asked for the relevant information, and I will go through the night. Whether I come in tomorrow, I do not know. If there is a plan to rise any earlier than after our discussion of all of the amendments, it would be courteous to those who are waiting to speak to amendments that come much later in the Marshalled List, and it would certainly he courteous to the staff of the House, to inform us of that. Otherwise, I do not regard myself as culpable. I believe that I am doing my job as a member of the Opposition Front Bench.

    My Lords, I, too, am wary of having two Opposition Front Bench Members intervening on the same subject. We have—dare I say this to the noble Lord the Chief Whip—been totally and utterly co-operative in relation to the Bill the whole way through. We agreed that the Bill should go into the Moses Room. It then turned out that it was not a suitable Bill to go to the Moses Room; all those who took part in the Committee stage would agree with that. It would have been far better to have involved the Front Bench. We were trying to assist the Government, and we shall go on doing so because we believe that the Government should be allowed to secure their business; we always try to assist them in that goal.

    Having said that, the Bill was considered for four days in the Moses Room. One would therefore have thought that we should have at least two days' debate on Report. The Government are trying to railroad the Bill through by allocating one day for our debate on Report, although there are about 70 groups of amendments before us. That is an awful lot of amendments to get through. At this stage—at nearly 10.30 p.m.—we have got through very few amendments.

    No doubt the Government will respond by saying that we behaved differently when we were in government. That is not the case. The Government should be prepared to make a concession in relation to the Bill. There is no problem whatever with time. We do not know when the election will be—the noble Lord the Chief Whip does not know when it will be and—dare I say it—the Prime Minister does not know when the election will be. When it is called, some sort of deal will no doubt be done about the Bill's passage. Let us wait until that happens. For the moment, we should allow the House to do its job, and to do so properly; it should revise, as it has always properly done, legislation that comes before it.

    I hope that the Government do not want to sit much later than 11 p.m., particularly because we will begin sitting at 11 a.m. tomorrow. I hope that the noble Lord the Chief Whip will take a reasonable approach in relation to the Bill, especially because we have been reasonable in the past.

    My Lords, I am sure that this debate is completely out of order. However, at this time of night, it is important to explain the facts. It is true that the Bill spent four days in the Moses Room. That amounts to about 16 hours, which is equivalent to one days' debate on the Floor of the House.

    My Lords, noble Lords say, "Come on". Well, four times four is 16; if one divides 16 by two, one gets eight, and eight hours amounts to one days' debate on the Floor of the House.

    I have already offered an arrangement. Because of the number of amendments, I am quite prepared for the House to go up tonight around 11 o'clock or soon after—thinking of the staff of the House—and to finish the Bill on Monday. I will rearrange the Business on Monday, as long as we get the Second Reading of the Health Bill. I will take off the Second Reading of the Capital Allowances Bill. It is a perfectly reasonable arrangement. I will deliver the Bill to the Commons, already a week late, next Thursday, on Third Reading. For some reason, the noble Lord does not want to accept this. I cannot see why. If members of staff are kept late now, it is entirely the responsibility of the Opposition for refusing what I think is the very reasonable deal that I have offered them.

    My Lords, will the noble Lord the Government Chief Whip tell me what is the hurry? When is the election? We do not have to have an election for another year or so. We are not having an election in May, as far as I know, unless the Prime Minister has other ideas. There is no hurry about the Bill. We have any amount of time, and it is very important that the House discusses these Bills properly and does its job properly as a revising Chamber. This House will insist on doing that job. Why is there any hurry at all about the Bill?

    My Lords, I am sure that if the noble Lord had been at any time Chief Whip for the Government he would know that there is an arrangement between the two Houses by which business is managed, and we try to get Bills back to the Commons at a certain pace. I have already delayed this Bill by a week, and I am not going to have the Government's programme decided by the Opposition Chief Whip. I have offered a perfectly reasonable deal on this important Bill. I spent 10 years in Opposition and dealt with disability. I hate to personalise this. I have two handicapped children, as the House knows—

    My Lords, I am not going to play games. It is the noble Lord himself who is playing games. We are not trying to delay this Bill at all. We always accept that it is the duty of Her Majesty's Opposition to allow the Government to get their legislation, but we also accept that it is the duty of the Opposition to make sure, particularly in this House, that Bills are properly discussed.

    I think the noble Lord should accept the fact that this Bill must be discussed properly in this place and it is not for us to say that this Bill should go through purely at the convenience of another place. If another place is desperate to have the Bill, the noble Lord must tell us why. Is it because they want to have an election on some particular date? I do not know. The noble Lord will no doubt tell us, as Chief Whip for the Government Benches. We want to know when we can discuss this Bill properly at a proper stage of the night. Are we to discuss it until two o'clock or three o'clock, or on another occasion?

    The noble Lord has suggested an alternative; that we could have another day on Report, next Monday, and then we might have a Third Reading on a later occasion. I am prepared to agree to that, but I am not prepared to agree to any suspension of the usual intervals between different stages of the Bill.

    moved Amendments No. 55:

    Page 8, line 13, leave out paragraph (b) and insert—
    ("(b) An"y setting recognised by an early years development partnership set up by a local education authority under section 119 of the School Standards and Framework Act 1998.").

    The noble Baroness said: My Lords, I beg to move Amendment No. 55 and speak also to Amendment No. 58. On both amendments, I am speaking for the Royal National Institute for the Blind as the purpose is to allow any setting recognised by an early years development and child care partnership to request a review or assessment of educational needs.

    Earlier identification, intervention and support for young children with a range of special needs, and their families, play a high-profile role in current government initiatives and programmes which include Sure Start and Early Excellence Centres. Guidance and the draft code of practice, special educational needs and national standards for the regulation of day care places are the responsibility of practitioners in early years settings who are involved in the identification of a child with special educational needs. As severe sight loss is rare it can be easily missed. Those involved in day-care settings are in a key position to notice subtle changes or differences in a child's behaviour that may indicate a special need. Practitioners will need the support of local education authorities and health and social care specialists in the assessment of a child's needs if they are to be identified and if timely support is to be given.

    In relation to these amendments, I speak specifically about children with sight impairments but, as my noble friend Lord Baker of Dorking said earlier, they would apply to children with all sort of difficulties that could lead to the need for a statement later on. I beg to move.

    10.30 p.m.

    My Lords, I respect the constructive way in which the noble Baroness has presented her argument on these amendments and I respect the group on whose behalf she has moved the amendment. We are sympathetic to Amendments Nos. 55 and 58. We do not believe, at this stage, that they are quite right, although they provide a useful avenue to ensure that we achieve the objectives that the noble Baroness has identified. We would like to consider the amendments and return to them at Third Reading. On that basis, I hope that the noble Baroness will feel able to withdraw the amendment.

    My Lords, I am grateful to the noble Lord for that response. Of course, I shall withdraw my amendment.

    Amendment, by leave, withdrawn.

    moved Amendment No. 56:

    page 8, leave out lines 15 to 17 and insert—
    ("( ) an independent school,
    ( ) a school approved under section 342.").

    The noble Lord said: My Lords, Amendment No. 56 fulfils the commitment that my noble friend Lady Blackstone gave to the noble Baroness, Lady Blatch, to consider adding independent schools to the list of relevant schools in Clause 8. Noble Lords will see that we intend to add independent schools and non-maintained special schools to the list. Those schools would, therefore, have the right to ask a local education authority to assess or to reassess the special educational needs of any of their registered pupils in the same way as maintained schools.

    In the light of that, and as it achieves what the Opposition seek with Amendment No. 57, and more, I trust that the noble Baronesses, Lady Blatch, Lady Miller of Hendon and Lady Seccombe, will withdraw their amendment. I beg to move.

    My Lords, I would like to sound grateful for what the noble Lord has done. It is good news that he has included the independent schools. However, in speaking to the amendment, the Minister has given no reason whatever why, in adding "an independent school", the Government have removed "a city technology college", "a city college for the technology of the arts" and "a city academy". I believe that we are owed an explanation as to why "an independent school" has been added but three schools have been taken away.

    My Lords, the issue that we believe that the noble Baroness raised in Committee has been covered by our approach on independent schools. We believed that that covered the points discussed in Committee. The other schools mentioned by her are legally independent schools, so they are within the framework of this provision. By indicating that we had covered independent schools I believed that we had covered the categories to which she referred.

    My Lords, this is very strange. Either the Government made a mistake when they produced this Bill or they did not. The Government had included "a maintained school", "a maintained nursery school", "a pupil referral unit", "a city technology college", "a city college for the technology of the arts" and "a city academy", but now they have included "an independent school" and left out three of the other schools. What is wrong with including all the schools?

    The status of an independent city technology college, a city college for the technology of the arts and a city academy is different from an independent school. The way in which they are structured and the way in which they were set up are different. They are independent in one form but they are within the bosom of state-funded education. Therefore, it is important that they are not seen in the same category as totally independent schools that receive no funding whatever from the state. The city technology college, the city college for the technology of the arts and the city academy are entirely publicly funded. Therefore, I do not agree that they should be removed and replaced with "an independent school".

    My Lords, this is a thoroughly confusing piece of nomenclature with which the Government, and indeed previous governments, have landed themselves. This long list of different types of school appears in several places in the Bill. Is there any kind of school which the Government have left out of the list or does the list include all schools?

    My Lords, I am grateful to the noble Lord, Lord Lucas, because he has spoken the lines I was about to deliver. We thought that our amendment met the objectives contained in an amendment tabled by the noble Baroness, Lady Blatch, in Committee and which included independent schools. That covers all the categories. Nothing is left out. We thought that the noble Baroness would recognise the amendment as a concession on our part to the discussion in Committee. Accordingly, we have presented an amendment which covers all schools. Therefore, we hoped that she would be prepared to withdraw her amendment. I hope that that still is the case.

    My Lords, it does not cover all schools. The Government have put in one and then removed three. So it cannot possibly cover all schools. So far as concerns finance, the three categories which have been removed—the city technology college, the city college for the technology of the arts, and the city academy—are maintained wholly by public funds. They are within the bosom of state-funded education. They are not independent in the sense of an independent school which is not dependent on the Government for any funds whatsoever, other than the remnants of the assisted places scheme which the Government have abolished anyway. So it really is not good enough to say that "independent schools" covers all these other schools. It does not. There is a very strong argument for leaving them in. We shall certainly return to this matter at Third Reading.

    On Question, amendment agreed to.

    [ Amendments Nos. 57 to 59 not moved.]

    Clause 9 [ Duty to specify named school]:

    The noble Baroness said: In moving Amendment No. 60, I shall speak also to Amendments Nos. 62 and 63. In Committee I fear that the Minister misunderstood our amendment. We do not intend to oblige local education authorities to fund places outside the maintained sector that they are not already obliged to either fund or part fund. We want to ensure two matters: first, that there will be no premature closures of special schools in the maintained sector; and, secondly, that local education authorities will continue to fund or part fund those educational places for children with statements appropriate to the child's needs.

    It is acceptable if parents notify local education authorities that they do not require such a place. But I want to see provision for those parents caught in the "Catch 22" situation where they wait so long for either a statement or a placement that they resort to the private sector as a kind of stopgap until the LEA makes the necessary provision for their child. Under the terms of the Bill, there will be no way back into the maintained sector except by the withdrawal of their child from the independent school. In Committee, in response to my noble friend Lord Pearson of Rannoch, the Minister stated that:

    "All I can say to the noble Lord is that this Bill does not in any way affect the current arrangements for the funding of places in the independent sector where the school is named in the statement".—[Official Report, 29/1/01; col. CWH 81.]

    Will the Minister go further and say that not only will current arrangements continue to be funded, but that all the existing flexible packages that suit so many children will also remain available for children in similar circumstances in the future? If an LEA cannot provide an appropriate place to meet the requirements

    of a child with a statement, then it should be obliged to fund such a place elsewhere. We wish to ensure that existing funded or part-funded places and similar places in the future remain available to children and for parents who pay their taxes in this country.

    There is some sympathy with local education authorities which hold open special educational needs places for pupils, only to see those places remain empty. The local authority is financially committed, while at the same time another child is prevented from benefiting from that place. That is why we have stipulated holding the place for half a term. That allows enough time for parents to decide whether to accept the place, but not so long that it would prevent another child from benefiting from it later. Should the Bill as drafted become law, local education authorities will have no incentive whatever to speed up their decision making, no incentive to meet parents part way in funding, no incentive to agree flexible packages for children and no need to ensure any additional special needs provision at all.

    Where the parents of children with statements have private funds, they will be forced to pay for appropriate places in the private sector, whereas children with statements whose parents do not have the financial means will be forced into the mainstream sector by the gradual closure of many special schools. Until now, we did not believe that this was the original intention behind the Bill. I hope that, when the Minister comes to respond, we shall once again receive a reassurance on this point.

    During our earlier debates in Committee, the noble Baroness stated at col. CWH 136 that it was not the intention of the Government to allow LEAs to avoid naming a school in a statement in a significant number of cases. Can we be told exactly what number of places would be regarded as "significant"? How will this number be calculated, both nationally and within LEAs" What is to be the cut-off point before the department or inspectors or tribunals on behalf of parents step in? Does not the fact that the point has been raised at all by the Minister indicate a serious flaw in the proposed clause as it stands without my amendment?

    What is the purpose of an LEA undertaking to statement a child if it then does not have to nominate an appropriate place for that child's education? In Committee the Minister said that:

    "If parents arrange their own provision for the child, we see no reason why the LEA should hold open a place at the school currently named in the statement pending the conclusion of the appeal".—[Official Report, 29/1/01; col. CWH 137.]

    That misses the point I made in Committee and which I have repeated this evening. This goes to the nub of the matter. If parents are already satisfied with their own arrangements, they would not be taking the LEA to appeal. They would merely write to the LEA to say, "Thanks, but no thanks. We are happy with the arrangements we have made". There is no need for the LEA to hold open an empty place.

    I believe that this clause goes too far in that it may even encourage local education authorities not to make enough special needs places available in the first

    place. My amendment seeks to ensure that local authority places are made available for those children who need them, but at the same time, local authorities need not hold open such places indefinitely. Again, if we refer back to the aims of the Bill, so far as concerns the Government, then the Minister ought to be sympathetic to my amendment. I beg to move.

    My Lords, I am in sympathy with the amendment moved by my noble friend. Indeed, my own amendment in the next grouping, which we may not need to discuss, looks at the matter from much the same point of view. The Government made a good point when we discussed this matter in Committee. A local education authority should not be compelled to hold open a place for ever while a parent is swanning around an independent school and simply not stating that the place was not wanted. Nor, however, is it reasonable for a parent faced with looking after and educating a severely disadvantaged child to be able to do nothing for that child for a couple of years while the process of statementing grinds on, so that the local authority then has to make a statement.

    Why should parents with the means and ability to provide for their child privately for a year or two while the local authority is making up its mind be prevented from doing that simply because, if they do that, then the local authority will not make a statement? Surely the right way to approach this is, while the local authority is making up its mind on what should be done for a child and while the appeals process is grinding its slow way through, parents should be free to make whatever provision they can for their child? That should not disadvantage the child's chance of securing a statement.

    The right arrangement, if the parents can afford it, is to provide for the child privately; the statement arrives, it is agreed, and the child then moves to whichever school is specified in the statement. Under Clause 9 as presently drafted, that will no longer be possible. I do not understand why the Government are insisting that children should not be educated for a couple of years as the price of getting a statement.

    10.45 p.m.

    My Lords, perhaps I may deal first with the issue raised by the noble Baroness regarding independent schools and the arrangements that could be made by parents.

    We value the role of the independent or non-maintained special school sectors. The Bill preserves parents' freedom to choose to send their children to these schools. Nothing in the Bill jeopardises existing packages of funding provision in non-maintained or independent schools. It will still be for LEAs to determine or for tribunals to order the decisions in that respect. Nothing in the Bill indicates anything other than a continuation of existing arrangements so far as concerns the independent sector.

    The fact that parents educate their child privately does not mean that the child cannot get a statement. LEAs are under the same duty to assess a statement whatever kind of school the child is in. Therefore, there is no way in which the LEA can absolve itself from responsibility with regard to children with special educational needs and the question of a statement.

    Amendment No. 60 is not required, because the effect of the clause as currently drafted is that if parents cease to make suitable alternative arrangements for their children, the LEA must then find a suitable alternative placement for them and include the placement in Part 4 of the statement. There is consequently no need to specify the name of a school or institution where parents are currently making suitable arrangements: if this situation changes and the parents cannot make their own arrangements, the LEA certainly cannot wash its hands of the child. I hope that noble Lords will recognise that it would not be right—and I think there have been indications to that effect in the contributions of both the noble Baroness and the noble Lord, Lord Lucas—to require LEAs to hold places open on the off-chance that they might be required by children educated at their parents' expense which are then denied to other pupils. That is why I am hopeful that the noble Baroness will withdraw her amendment.

    On the further issues with regard to the importance of Clause 9 as drafted, there is no intention in the clause to allow LEAs to cut a child and its parents adrift simply because, for one reason or another, the parents have chosen to place the child at a fee-paying school. LEAs must arrange provision for pupils with statements of special educational needs whose parents are not making suitable arrangements for them. Amendment No. 62 would have the effect of making the clause unworkable in practice and could cause school places to be kept empty to the detriment of other pupils and require local education authorities to absorb the cost.

    We also consider Amendment No. 63 to be unnecessary. LEAs are already required to arrange that the special educational provision set out in the statement is made unless they establish, following notification by the parents, that suitable alternative provision is being made. That is the obligation of the LEA. I recognise that this amendment is also intended to protect the position of parents who have placed their children at an independent school and are appealing to the tribunal to have that school named in the statement. They may be concerned that if they lose the appeal, the place in the LEA's choice of school will be lost. However, we do not think that this strikes the right balance.

    LEAs should not be required to keep places open for children whose parents do not really want them. If the tribunal agrees with the parent about the school to be named in the statement, the child will continue to be educated there and the place kept open by these amendments will have been wasted. If the tribunal disagrees, the LEA will be required to name a school in the statement, possibly the school it originally wanted to name or another school suggested by the LEA, the parent or arrived at through agreement.

    On that basis, I hope that the noble Baroness will feel able to withdraw her amendment.

    My Lords, I am sorry that the Minister was not at least sympathetic to the plight of the parents who, out of sheer frustration, buy a place that they can ill afford in an independent school pending the outcome of all the procedures which have to be gone through and, because they have done that, the LEA and the Government write them off. They say, "They have gone off to the independent sector. They can stay there now and the place can be given to somebody else".

    If the parents' preference is for a maintained place and out of sheer frustration and wanting to make some provision for their child they go temporarily into the independent sector, then the small breathing space asked for by the amendment should be made available so that the child can have that preference honoured. The tone of the noble Lord's reply was that if they go to the independent school, whether or not they can afford it and whether or not they are sent there out of frustration in the interests of the child, tough! If that is the noble Lord's attitude, we shall have to return to this amendment at Third Reading. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    moved Amendment No. 61:

    Page 8, line 30, at end insert (", and the parent has failed to confirm his acceptance of the school named in the statement in the specified manner or within the specified time").

    The noble Lord said: My Lords, in the course of the last amendment I found myself agreeing entirely with the Minister and entirely with my noble friend Lady Blatch. I agree with the Minister that it is unreasonable that local authorities should be made to hold open school places. I agree with my noble friend Lady Blatch that it is also unreasonable for parents to be forced to leave their child unprovided for if they can, on however temporary a basis, afford to have that child educated while the local education authority is making up its mind.

    Perhaps I can put a scenario to the Minister. Suppose I have a child in the middle of her school years and, through some accident, she is suddenly made blind or deaf, or made nearly blind or deaf. I have £20,000 or £30,000 and my reaction in those circumstances is to use that money to help her as best it can to overcome the consequences of what happened to her. I cannot provide for a blind school or deaf school for long on that money. But I can do something while the local authority is getting into gear. It may take the local authority a year or, under current practice, a couple of years before my child is properly provided for, years which she could be spending with properly qualified people getting used to her new disability—learning Braille, lip-reading or whatever provision may be made for her.

    Under Clause 9 I am faced with the position whereby, if I use my money to do anything for my child, I jeopardise her entire future because she will then not be statemented. I have to sit by and do nothing for her because, by doing something, I can cause her great harm.

    Suppose I put her in an independent school so that she is cared for and helped through the trauma of the accident. Yes, when I run out of money she will again be available to be statemented. But it will then take the local authority a year or two before there is a place for her. She will therefore have an enormous hiatus in the middle of her education. Therefore I dare not buy a private place. That situation is utterly unreasonable. Surely the first duty we owe to our children is to do everything we can for them, particularly in the hardest circumstances.

    Surely most of us, in those circumstances, would mortgage our house and do the best we can with all the money that we can make available to look after our child who suffered whatever the accident might be. Surely the state should support us in that action and say, "Yes, you make provision for the child for a year. We will move as fast as we can to bring her into the mainline system. When we get to the point where we know what the statement is to be, you will be given a limited time to decide whether or not you take the statement or continue with your present private provision".

    That seems to me to be entirely reasonable. The state should not be left hanging. A parent choosing to make a sacrifice with whatever money he has to hand, to do something a bit faster or better for his child, only to have the state bite back and damage the child as a result is entirely unacceptable. I hope that the Minister will be able to give me some comfort on that. I beg to move.

    My Lords, it will be recognised from my reply to a previous debate that I am sympathetic to the case which the noble Lord has outlined. As I said earlier, LEAs will not cut children adrift. Those who are being educated in the way in which the noble Lord described, for example, awaiting the possibility of a statement and being educated under a parent's decision, do not disqualify themselves or devalue their position in respect of the responsibilities of the local authority.

    When a proposed statement is issued or reviewed, or an LEA proposes to change the name, type of school or provision specified in the statement, the LEA must not name a school in Part IV of the proposed statement. Parents have the right to express a preference. It may be that they would wish the local authority to support the student in the placement that the noble Lord outlined, and they may succeed in persuading the local authority that that is the best way in which a child's education should continue. The LEA is obliged to consider that parental position before naming the school. If parents have made their own suitable arrangements, no school will be named.

    If the amendment were accepted, LEAs, knowing that parents wanted to make their own alternative arrangements—home education, for example—would have to go through the process of naming the school in the statement, including consulting schools, so that the parent could then fail to take up the place, as everyone knew they would. Such parents would have chosen another strategy, and all the while the place that was available via the statement would have been denied to another child.

    That is why we vest considerable responsibility in the LEA. Of course, I recognise the circumstances that the noble Lord outlined about parents taking an alternative course of action. I am seeking to reassure him that that does not reduce in any way the significance of the child's case. The local authority must consider it in the same way it would consider any other child with comparable needs. I hope that, given my assurance, the noble Lord may feel that he can withdraw his amendment.

    I found the Minister saying everything that I hoped he would, except the final answer. Perhaps we can continue this discussion separately, as there must be some agreement somewhere. If the local authority does not have to name a school, and my child is in an independent school, awaiting the statement, how can I make the transition? There will be no school for my child to go to. How can I take her out of independent schooling? I may be desperately running out of money and waiting and waiting for the local authority to offer a school but it is under no obligation to do so. It does not even have to begin the process of naming a school until I have taken my child out of private education. Therefore, there must be a hiatus of six months, a year, two years, during which my child is not educated, between my money running out and her being found a school by the local education authority. That is not an acceptable way of doing things.

    There must be some mechanism whereby I can declare to the local authority that I will accept a statement; whereby it is clear that what I am doing is only a temporary measure until the local authority makes the provision. Therefore, I can avoid my child being dropped into a position of not being properly looked after for a couple of years.

    I understand everything that the Minister is saying but I am sure that he must agree that it is very unsatisfactory. The local authority does not escape the rest of its obligations but it does not have to provide a school. There is the statement but there is no school to go to. There is no place. There is nowhere my child can go. I must wait until my money runs out and then keep her at home for a couple of years until the local authority provides a place. That is not satisfactory. There must be a better way. Unless it is possible to resolve the issue, I shall return to it at Third Reading. But for now, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendments Nos. 62 and 63 not moved.]

    11 p.m.

    moved Amendment No. 64:

    After Clause 9, insert the following new clause—

    ("Amendment of statement of special educational needs


    . Schedule (Amendment to statement of special educational needs) makes further provision concerning the rights of parents and others where a statement of special educational needs is amended.").

    The noble Baroness said: My Lords, the amendments in this group tabled in my name respond to amendments moved by the noble Baroness, Lady Darcy de Knayth, and substantially meet her concerns. They amend Schedule 27 to the Education Act 1996 to give parents the right to a meeting with the LEA to discuss proposed changes to their child's statement following any reassessment or periodic review—typically an annual review; require LEAs to make arrangements for parents to express a preference for a maintained school, including a maintained special school whenever changes are proposed to their child's statements following a reassessment and where changes are proposed in relation to the type of school or named school following a periodic review.

    These amendments address the problem that the noble Baroness highlighted of parents of children who were assessed when they were very young having limited opportunities to express a preference for a maintained school. They greatly increase those opportunities. They will also ensure that maintained schools which LEAs are considering naming in a statement receive a copy of the proposed statement or proposed amended statement for that child as part of the consultation process.

    We have consulted separately on a proposed change to the Education (Special Educational Needs) Regulations 1994 which would require LEAs to amend the statement for a child transferring schools by 15 February in the school year prior to the transfer. That will give parents time to express their preference for a maintained school and, if necessary, have an appeal heard by the SEN tribunal before their child is due to start at the new school.

    Amendments Nos 162, 163 and 164 make minor technical amendments to Schedules 7 and 8 to the Bill as a consequences of the changes brought about by Amendment No. 152. I must make clear that we have overlooked making some consequential amendments necessary as a result of the changes proposed to Schedule 27 and we shall bring those forward at Third Reading.

    At this point, since we are considering amendments moved in Committee by the noble Baroness, Lady Darcy de Knayth, I must point out that we have considered further an amendment moved by the noble Baroness in Committee concerning professional advice sought for statutory assessments. The amendment would have placed a duty on LEAs to seek advice for statutory assessments on the nature of a child's special educational needs and on the type and amount of special educational provision to meet them.

    Having reflected on the points raised during the debate and discussed them further with the noble Baroness, we remain of the view that the current regulations governing LEAs' duties are clear and do not need to be amended. They already require that advice should relate to the educational, medical, psychological or other features relevant to a child's educational needs and the provision that is appropriate in the light of those features. Professionals giving advice can, therefore, already comment on the nature of a child's special educational needs and the amount, as well as the type, of provision that they consider appropriate.

    We do not believe that it is right to go further and require every person giving advice for an assessment to state a recommended amount of provision in every case; that must depend upon individual circumstances. None the less, we understand the concerns expressed by noble Lords, and wish to offer reassurance. We shall enhance the guidance on assessments in the revised SEN code of practice by setting out specifically the statutory requirements that LEAs must follow when seeking the advice to which I referred. The revised code of practice will advise that LEAs should make those requirements clear when they seek advice. It will also make clear that those giving advice can comment on the amount of provision that they consider appropriate for a child.

    During Grand Committee, the noble Lord, Lord Lucas, expressed concern that LEAs were preventing educational psychologists from producing independent and meaningful reports for assessments. We have no evidence to show that that is the case; nor did the research that we completed recently on The Current Role, Good Practice and Future Directions of Educational Psychology Services(England) reveal any concern about the integrity and independence of educational psychologists. To recognise noble Lords' concerns, we shall state in the revised code of practice that LEAs should not have blanket policies that prevent those giving advice for assessments from commenting on the amount of provision that they consider a child requires. I beg to move.

    My Lords, I thought that the noble Lord, Lord Lucas, was going to speak to his amendment that seeks to amend the schedule—

    My Lords, I beg the noble Lord's pardon.

    I should like to give a very big welcome for these government amendments, which, as the noble Baroness said, will greatly strengthen parents' rights to express a preference for the school. I have to say that IPSEA (the Independent Panel for Special Education Advice), of which I am a member, says that this will make a great difference to a large number of children with statements, and their parents.

    Perhaps I may, prematurely, support Amendment No. 153, tabled in the name of the noble Lord, Lord Lucas. I supported his amendment in Grand Committee, although I believe that it is slightly changed in its present form. I hope that the Minister will look kindly upon it. Nevertheless, I trust that the noble Lord will not press it this evening because I believe that these government amendments are hugely welcome. I would hate to see them put at risk in any way.

    I turn to the Minister's statement about professionals' reports, which, as she said, was in response to an amendment that I moved in Grand Committee. I am most grateful for the meeting that we had with Jacqui Smith. I know that the Minister intended to be present. It was an extremely useful meeting. I am very grateful that the Government have reflected, listened and gone a good long way towards meeting my concerns. As the noble Baroness said, professionals will know that they can include in their reports the type and amount of provision required. I understand that the Minister has to be cautious, but I also welcome her statement that it would be wrong for any LEA to prevent a professional from including that advice in a report. I am really delighted with the government amendments, which will make a huge difference to hundreds of children.

    My Lords, I am not sure when my amendments will be called, so I shall leave their specific substance until that stage. In the meantime, I should like to comment on these general amendments. I am delighted that the noble Baroness has proposed to rewrite the schedule. I thank her very much for providing me with a copy of the revised schedule. I cannot say that I totally comprehend what it says.

    I am also delighted that the noble Baroness has taken on board what I said previously about educational psychologists. I am sorry that the Government are not receiving the evidence in this respect. It is quite evident to practitioners what is going on; for example, there is a whole range of educational psychologists who will not take cases in front of a tribunal because they are so dependent on local education authorities for their money. This is one of the regular traps into which parents fall. They find themselves having to pay for two reports from educational psychologists because the first one to whom they spoke said that he would not apply to a tribunal. But what the noble Baroness has done is at least a step in the right direction and I welcome that.

    My Lords, I am grateful for the welcome that these government amendments have received from the noble Baroness and from the noble Lord.

    On Question, amendment agreed to.


    (". In section 576 of the 1996 Act (meaning of "parent"), after 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: My Lords, the question raised in Amendment No. 65 is one that we raised in Committee. I think that there was widespread understanding of the underlying problem; namely, that for many children with special educational needs their parent is effectively the local authority because they find themselves in care or in other ways under the charge of the authority. Under those circumstances, however much one may praise local authorities and local education authorities, it is hard to impose on them a duty to be so critical of themselves as to take themselves to the tribunal to defend the rights of one of their clients against their own actions. In reality, a local authority and a local education authority are not really separate people.

    Under those circumstances it is important that there is a separate right of action for the child. It clearly has to be a moderated right, which is why I propose that that right should be under the control of the tribunal and should only be exercisable if the tribunal says that it should be. There is a more general principle to which I think regard needs to be paid; namely, that children, by and large, should be given a voice where they have the competence to express a voice. That is something that is clearly recognised by the Government in actions that they are taking as regards guidance. But it does not seem that guidance extends to this part of the Bill. Indeed, without this kind of provision in the Bill, there is a prohibition on a child bringing an action in front of a tribunal. He or she can give evidence but they cannot bring the action. So a child who is not being properly provided for by his or her local education authority and who is in care has no way of obtaining proper provision.

    Indeed, under Clause 1 of the Bill, as regards one of the basic fundamental decisions concerning whether a child should be educated in a mainstream school or in a special school, the only moderator is the wishes of the parent. The parent in the case I am describing is the local authority. Again, the child in that case has no access to that right and to that decision. I do not see a way round that. I think that under the Bill as it stands we have to trust to the good offices of the local education authority.

    But I think that where we can deal in a reasonable way in offering a child access to justice and good treatment, we should do so. We should certainly recognise the potential for conflicts with children in care, many of whom have special educational needs and many of whom are quite difficult children in any event. We should not present the local education authority and the local authority with a conflict on the scale which we have now. We should offer the child an independent right of action in front of a tribunal as a way of allowing justice to be done and justice to be seen to be done for that child. I beg to move.

    My Lords, I support my noble friend. I believe that there was support for the measure on all sides of the Committee. I believe that there was support from the noble Lord, Lord Rix, from the Liberal Democrat Members and from other Cross-Benchers.

    In Committee the Government did not give any comfort whatever as regards the plight of a child whose guardian is the local authority. In a predominant number of cases which go to the tribunal, the problem relates to the LEA and the type of provision made for the child. It seems unlikely that the LEA which is the technical guardian of the child will take itself to the tribunal. The noble Baroness split hairs, saying that the LEA is not the authority, or the authority is not the LEA. The truth is that the local authority is still responsible for the care of the young person. The housing authority may be responsible for accommodation; social services may be responsible for guardianship. Many people are involved.

    However, those who are of an age to be capable of making a judgment as to whether their provision is appropriate should be given the facility to act on their own behalf if no parent can act for them. I have read carefully what the Government said in Committee. The Government offered no comfort to those of us who are concerned about the young person who has special needs but who, sadly, is not with a family, does not have parents or may have parents who are unable to care for him and is in local authority accommodation. That young person is bereft of an avenue to the tribunal. It would be helpful to have something more comforting from the Minister about what a young person in that position could do.

    11.15 p.m.

    My Lords, I am not sure that I am able to be more comforting than in Committee. The amendment would create dual rights of appeal for the parent and the child where the tribunal considers a child capable. I believe that this could be confusing and I do not think that it is necessary.

    As I made clear during the debate in Committee, where a child is in care parental responsibility rests with the local authority. That is well established. What happens in practice in the case of a conflict between the social services department and the LEA about the special educational provision to be made for a child is that the child's social worker represents the interests of the child or a third party is appointed to do so. Sometimes, of course, foster parents will have a role to play.

    I know that this happens in practice without the conflict of interest about which the noble Lord, Lord Lucas, and the noble Baroness have expressed concern. In any event, we are strengthening the arrangements for hearing the child's views at a tribunal. The new SEN tribunal regulations 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 hearings.

    New SENT regulations will also require an LEA responding to an appeal to state the ascertainable views of the child. The amendment would require the tribunal to decide in advance of any appeal made to it by a child that the child was capable of making such an appeal. This would delay the resolution of the appeal to nobody's advantage.

    In view of my reassurances I hope that the noble Lord, Lord Lucas, will feel able to withdraw the amendment.

    My Lords, I am disappointed by the answer but have to accept it. I suspect that the Government will see the issue arise again in a court case at some stage in the future. It cannot be acceptable that in a modern world a child does not have separate access to justice. That attitude is completely at variance with other actions the Government have taken, I think rightly, in relation to individual and children's rights. I am sorry that the Government do not see their way to extending principles they have applied elsewhere to this situation. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendment No. 66 not moved.]

    moved Amendment No. 67:

    After Clause 9, insert the following new clause—


    (". Local Education Authorities are required to make a statement of education need for any child referred to them by a school medical officer within 6 months of the referral).

    The noble Baroness said: My Lords, we are all aware how important it is for a child's special educational needs to be addressed as early as possible in the child's schooling. For that reason, I have tabled new Clause 10. A child's parents, a school medical officer or a school nurse is often the first person to see signs of physical or special needs in a pupil. Such people are experienced andqualified. Their professional opinion should carry particular weight when a request for a child to be statemented is made. When a request to an LEA for a statement is supported by a school medical officer or school nurse, the statement should be forthcoming within a reasonably short timescale.

    All too often we hear of significant delays in obtaining a statement for a child. Sadly, special educational needs identified by professionals in primary school are not always picked up when the child transfers to secondary school. The secondary school may spend several school terms reinventing the wheel in noting the child's special educational needs and then find that it is unable to provide for that child, who then has to make another transfer to a more suitable school, having lost many months—and sometimes more—in the process.

    I am particularly concerned about pupils about to make the transfer to secondary school. It is in the best interests of the child for a statement to be made before any transfer if a school medical officer or school nurse thinks that they have noted specific special needs. We may need to go further than the amendment and require local education authorities to provide a statement for such a child before they leave primary school, but before we consider strengthening the amendment I would welcome hearing the Minister's response. I beg to move.

    My Lords, we do not believe that the amendment is appropriate. It is for the LEA to decide, in the light of appropriate advice, whether a child has special educational needs, and if so what action should be taken. The only requirement on health authorities is to provide for a medical and dental inspection at appropriate intervals for pupils at maintained schools, but that does not necessarily mean on school premises or by a school health service. Consequently, only some children may have access to a school medical officer. In such cases we expect the LEA to take into account the views expressed by the school medical officer, a designated medical officer for SEN as appointed by a health authority or a referring paediatrician. I hope that the noble Baroness accepts that suitable provision can be made without a statement. Not all the parents or children concerned will necessarily want one.

    To require the making of a statement in all such instances may also lead to an extra layer of bureaucracy, which will mean less time and resources being devoted to move deserving cases. LEAs should be able to determine, on all the evidence available, which children need to be assessed and provided with statements. The amendment may lead to greater delays in the processing of statements and adverse effects on the provision for the children concerned.

    As we pointed out in Committee, the current SEN code of practice offers clear advice to LEAs and others involved to ensure agreed procedures for referring a child to the LEA. However, we are certainly not complacent. I assure the noble Baroness that relevant practical guidance will be produced for health and social service professionals with a view to encouraging closer joint working between agencies. I confirm that we will reinforce the message that LEAs should pay full regard to the recommendations of school medical officers if the child has access to them. If such professionals have identified a possible need, LEAs should act on it, but acting on it may not necessarily require a statement.

    A first round of consultation on the revised code of practice in 1999 proposed that health authorities could request an assessment. That idea met with a negative response from health respondents, including the Royal College of Paediatricians, on the grounds that, although they might identify special educational needs that required provision to be made, they did not feel that they had the expertise to identify the level of intervention needed—school-based or with a statement—and they did not want to raise parents' expectations inappropriately or to add to the LEA's workload. Under these circumstances it is unlikely that school medical officers or other doctors would want the responsibility of deciding that a child must have an assessment and statement.

    Therefore, we are not convinced that this amendment is necessary, particularly since action can already be taken quickly where assessments are necessary. Fast-track arrangements are possible under the current code of practice. The existing code makes it clear that in exceptional cases it may be necessary to make an emergency placement for a child and that it should only be made when the LEA, the parents, the school and other professionals who would be involved in the statutory assessment all agreed that the child's need are such that action must be taken immediately and that an emergency placement is the best way forward.

    We are committed to making sure that the needs of children are identified rapidly and that the LEA and the health authority develop consistently good links for the benefit of the children concerned. In the light of those remarks I hope that the noble Baroness will withdraw her amendment.

    My Lords, I am grateful for the sympathetic tone of the noble Baroness's response, but I believe there is also a misunderstanding between us about the amendment. Indeed, while the noble Baroness has been speaking I have found a way in which to re-word my amendment, which would meet the points she has made.

    Of course, it is not for the medical staff to make the statement and my amendment does not suggest that. That is for the LEA, which my amendment recognises. It is the LEA's responsibility to provide the statement. The noble Baroness also made the point, which is true, that where a referral is made by medical staff of the kind I have referred to in speaking to this amendment, it will not necessarily result in a statement in each case. It may result in some provision for the child, but not necessarily a statement.

    If I am more correct about what I want from the statement in the amendment I would word it to the effect that local education authorities are required to make an assessment and, where appropriate, produce a statement of educational need for any child referred to them by a school medical officer within six months of the referral. I say that because it is very often the avenue through which the school becomes aware that there is a problem. Either the health visitor or someone involved with the family medically discovers that one of the worries that the parent has is of a particular need which the child has. Inadvertently a particular is revealed. For many years I was chairman of my local play group. We picked up issues very often through the visiting health official. These were then processed into the system.

    It seems to me that where a medical officer shows very real concern about the learning difficulties or the special needs of a child, those should not only be taken seriously but should also result in timely action. That is why my amendment refers to a six months' deadline from the particular request. Recognising some of the points that the noble Baroness made and picking up her sympathetic tone, I believe that it is important to put on the face of the Bill that where medical staff request that a child is assessed and, if appropriate, a statement produced, it should be done within a timescale. I shall seek to return at Third Reading with such an amendment. I beg leave to withdraw my amendment.

    Amendment, by leave, withdrawn.

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

    moved Amendment No. 68:

    Page 9, line 12, at end insert ("on the grounds of the disability of that person").

    The noble Baroness said: My Lords, this is a. large group of amendments including Amendments Nos. 68, 69, 71, 119, 120 and 161. It is important to clarify on the face of the Bill the definition of discrimination. This Bill is about discrimination on the grounds of a person's disability. For all other purposes there are other statutes which apply to all citizens of the United Kingdom and therefore they are outwith this Bill, which refers specifically to discrimination on the grounds of a person's disability.

    All the points which I made individually in Committee are in a different context but make the same point. The amendments make clear that unlawful discrimination is discrimination on the grounds of disability. The different parts of the Bill need to be very carefully worded. It is an important issue if this measure is not to be abused, as I believe it could be. It is right that a disabled person should be protected against discrimination on the grounds of that person's disability. But fair discrimination applied to all pupils must include disabled pupils. It separates out all of the other forms of discrimination from the Bill's primary aim, which is to ensure that young people are not discriminated against on the grounds of their disability. I beg to move.

    11.30 p.m.

    My Lords, I am grateful to the noble Baroness for the helpful way in which she expressed her objectives in the amendments. As she rightly said, we discussed these matters at some length in Committee.

    The amendments seek to confine the duty on schools and post-16 institutions not to discriminate against disabled pupils, students and people who are enrolled on courses to discrimination on the grounds of disability only. I recognise the strength with which the noble Baroness stressed that point.

    I am afraid that I must simply reiterate what was said in Committee. We do not consider the amendments, however worthy, to be necessary. The Bill is about outlawing discrimination on the grounds of disability. Part II of the Bill will amend the Disability Discrimination Act 1995, which, as its name suggests, is about discrimination on the grounds of disability.

    Clauses 11 and 26 make it entirely clear that discrimination will not take place unless there has been less favourable treatment of a disabled person for a reason relating to his 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. I do not think that there is any danger of the Bill being misinterpreted on that point. That I why I hope that the noble Baroness, whose intentions are laudable, will recognise that the amendments are not entirely necessary.

    My Lords, I shall single out Clause 10 to make my point. As has been said so often in relation to previous amendments, I begin with what is stated in the Bill. I do not refer to other legislation, because there is not a cross-reference in this context to any other legislation. The Bill stands freely in relation to proposed new Section 28A, which states:

    "It is unlawful for the body responsible for a school to discriminate against a disabled person".
    It does not refer to doing so on any grounds whatever; it simply states that it is unlawful to discriminate against a disabled person, full stop.

    It is important to make it explicit—this is the Bill's rationale—that the discrimination that is referred to should not take place in relation to a pupil's disability. I understand what the noble Lord said; it goes without saying that discrimination will of course be carried out in relation to a pupil's disability, but that is not what the Bill states. If a disabled person is discriminated against, he can literally invoke the Bill's provisions and simply say, "I am a disabled person and I have been discriminated against". However, if the discrimination is not specific to that person's disability—if he has simply been discriminated against and happens incidentally to be a person with disabilities—a confusion will arise. There are no qualifications in the Bill. My amendments attempt to deal with that situation. Will the noble Lord explain the situation more explicitly? The clause states:
    "It is unlawful for the body responsible for a school to discriminate against a disabled person … in the arrangements it makes … in the terms on which it offers to admit him … or … by refusing or deliberately omitting to accept an application".

    My Lords, we are not in Committee; we are on Report. I merely reiterate what I have already said. Discrimination is specifically defined in Clause 11. Proposed new Section 28A will become Section 28A of the Disability Discrimination Act 1995. Nothing could be more explicit in linking this Bill to the position on discrimination and disability: that is the basis on which we hope that the noble Baroness will withdraw her amendments.

    My Lords, may I say that I asked a question, and my understanding is that under the rules of this House that is allowed at Report stage. Indeed, I am grateful for the clarification that the noble Lord has given. I am also grateful for the way in which we can use the Pepper v Hart example, which is firmly on the record to the effect that discrimination is quite specifically on the grounds of that person's disability. That in itself could be invoked in any future cases. I beg leave to withdraw my amendment.

    Amendment, by leave, withdrawn.

    [ Amendment No. 69 not moved.]

    moved Amendment No. 70:

    Page 9, line 23, at end insert—
    ("( ) For the purposes of subsections (1) and (2) above, it shall be a defence for the body responsible for the school to show that the pupil could be equally well provided for at less cost, or could be better provided for in another school of the same kind and in the same district because that school already has facilities and staff (or both) trained to cope with the kind of special educational provision that child requires.").

    The noble Lord said: My Lords, the noble Lord, Lord Northbourne, has asked me to move his amendment. I believe that the amendment is self-explanatory, and I beg to move.

    My Lords, I shall be very interested to hear how the Government react to this. I am mostly interested in the principle that lies behind it. There are, for instance, three very good secondary schools in Winchester. Do they all have to provide for every kind of disability, or can they agree among themselves that a particular group of disabilities will be dealt with by one school, another group by another, and that they will thereby specialise and improve the overall service that they provide? If they are allowed to do that, they have to be able to say, "We do not provide a service, but one of the other schools does". I look forward to the Government's reply with great interest.

    My Lords, I want to add just one more point to that. This is an issue which applies also to the further and higher education sector. It would help to have clarification from the Government. To give the example of loop systems for hearing-impaired people, taking it to the extreme, one could expect every building in the land to be provided with a loop system which could be fitted into every nook and cranny of every college and educational establishment. Alternatively, there could be arrangements where, for example, a school might have no people with hearing or sight impairment but there could be an institution within reach in a local area where people are well provided for physically. It seems to me that there has to be some flexibility and, like my noble friend Lord Lucas, I hope that we shall hear something encouraging from the Minister.

    My Lords, I am grateful to the noble Lord for the precision with which he moved the amendment, and even more grateful to the two subsequent speakers, who have provided the basis for my response. The noble Lord, Lord Northbourne, raised these issues in Committee. His amendment would allow schools to discriminate in admissions or the provision of education where a similar school in the same area could provide as well for a child, at less cost, or better, because it is already equipped to do so.

    I fully understand the intention behind this, which is to allow schools to specialise in catering for one particular type of disability, thereby avoiding having to cater for a whole range of children with disabilities when they do not have the facilities or resources so to do. It is not the intention of the Government that every school in the land should be able to provide for every type of disability or need, however profound. I think it is recognised that this would be impractical in the short term and probably in the longer term. Indeed, we are encouraging special schools, which by their very nature cater for a particular type of disability, to link with their local mainstream schools to pass on their expertise as a contribution.

    This will mean that some mainstream schools will become expert and competent in one type of disability or special educational need. I also accept that under the planning duty LEAs and schools may focus on making schools accessible to children with a particular type of disability. With that response, I hope that it will be recognised that the Government fully understand the representations made in relation to this amendment and that the amendment will be withdrawn.

    My Lords, I thank the Minister for his reply. I hope that the noble Lord, Lord Northbourne, will be happy with that. That was a precise answer. I can think of many questions for another stage, although I may resist them. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendment No. 71 not moved.]

    moved Amendment No. 72:

    Page 10, line 13, after ("know") insert ("(having given the opportunity for disclosure by parents, guardians or the child)").

    The noble Lord said: My Lords, in relation to this amendment I am returning to a point raised at an earlier stage of the Bill. This group of amendments inserts the words "having given the opportunity" to disclose a disability when a pupil goes to a school or a college. I feel that we need to cater better for providing that opportunity as regards further and higher education. As the noble Lord said at an earlier stage, those methods and that power must be anticipatory. The fact is that if one does not know that one has to kick the methods into being, there will be delays and mistakes.

    I appreciate that the Minister has said many helpful things, but I am concerned about the initial stage. People may well believe that they know what they are doing, because they have dealt with someone who is deaf before. If they need a different type of hearing aid or signing, as that was part of the person's previous education, they will not know what they are doing as everyone is different.

    I have personal experience of just such a situation. Before the codes came into being, my own university thought that it knew how to deal with dyslexics because it had dealt with me, but someone else arrived who did not like dictating essays to a typist and wanted a few hours extra in which to write essays. They approached that person saying, "We know what we are doing", but they did not.

    Blanket terms will always mean that an individual may not be dealt with properly. The amendments in this group merely allow a position in which to start a dialogue and to give some examples of what has taken place before. I hope that the Minister will be able to give me an answer that will show that such a dialogue will be given more opportunity.

    I repeat that in further and higher education it is probably even more important for the simple reason that students are outside the mainstream of support. For the first time, and often after a break from education, students are studying without their parents' support. If somebody enters further education having had a bad experience of education in schools, I suggest that such assistance is even more appropriate. I hope that the Minister will be able to give me a positive assurance and take the matter further. I beg to move.

    11.45 p.m.

    My Lords, it goes without saying that I am sympathetic to the intention behind these amendments. The issue is whether they are necessary. I entirely understand the terms in which the noble Lord moved the amendment. It is aimed to ensure that a school or an institution has undertaken the responsibility before it can be deemed not to be liable under the less favourable treatment duty and the reasonable adjustments duty because it does not know and could not reasonably be expected to have known of a person's disability.

    As I explained before, the duty on schools, as the noble Lord recognised, and post-16 institutions to make reasonable adjustments is anticipatory. Responsible bodies cannot, in general, simply wait until a disabled pupil or student arrives at the institution before considering making an adjustment. Nor can they claim that the fact that they did not know that a person was disabled excuses them from their duty to make reasonable adjustments to avoid substantial disadvantage to disabled students generally.

    Under these duties, institutions and schools will have to anticipate and plan ahead. They must review their procedures and provision to ensure that they do not discriminate against potential disabled pupils or students.

    Both Clauses 11 and 26 make provision for responsible bodies not to be liable in respect of both the less favourable treatment duty and the duty to make reasonable adjustments.

    Most schools, colleges and universities should have, and indeed already do have, procedures in place to try and ascertain if a pupil or student or prospective pupil or student has any disabilities or special requirements. There are opportunities on the admissions form such as a tick-box, or at the admissions interview, to declare a disability or the need for any additional support. This self-identification can then form the basis for a discussion with a pupil or student to clarify their needs and how they will be met if that is required. I am happy to endorse such practices and to state our expectation that they should become universal. Indeed, I anticipate that this will be one of the effects of the Bill, if enacted. I am not convinced that we should make a specific provision on the face of the Bill, although of course we want the responsibility on the institution to be an active and not a passive one, which I believe was the burden of the representation of the noble Lord, Lord Addington.

    I believe that the present drafting of the Bill provides for the right balance and will bring about the effect that we all want. We will be able to talk about resources in the later stages of the Bill. However, I believe that the noble Lord recognises that in schools, in further education and in higher education, significant sums have been allocated specifically to ensure that institutions meet their obligations. We all recognise that that cannot be done overnight. But, as I understood the representations by the noble Lord, it is important that there should be proactive and stimulus stages in relation to institutions. I maintain that the Bill as drafted will provide exactly this stimulus and demand.

    My Lords, that was an answer which said, "Yes, it is good practice" and "Yes, in previous amendments we have decided that certain schools should let people specialise in subjects", which must mean they must know they are the right people to specialise in them. It is good practice. It should happen. To sensible people it will happen. But I cannot help but feel that there will be cases, particularly in adult education and probably in further education colleges when there are not interviews, that this will not take place. Perhaps one fills in a form which does not have the question on it. Although the answer that the noble Lord has given, and presumably is in Hansard, saying that this would be good practice has gone some way to answering this concern, I am not altogether happy. I shall have to consider the matter further. At the moment I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

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

    The noble Baroness said: My Lords, when I moved the amendment in Committee I made clear that I accepted the need for the qualification "substantial" to apply to disadvantage to a disabled person once admitted to a school, or, in a parallel amendment, to a college.

    Much as we try to ameliorate disadvantage to a disabled person, there will always be some disadvantage. It may be that doors open the wrong way, fire doors are too heavy, corridors are difficult to negotiate or ramps are too steep. One hopes that all those issues will be reduced over time. While there should not be substantial disadvantage once in the school or the college, there is likely to be minor or trivial disadvantage.

    On admission to the school or college, the position is quite different. Yet the Bill uses the words "substantial disadvantage" for both admissions as well as participation in the school once admitted. Admissions means the procedure for being accepted into the school. Discrimination on the grounds of academic ability or other such specialism is permitted, so that everyone who does not have the required ability or aptitude is at a disadvantage. Discrimination on the grounds of age, single sex provision or religious denomination are all legitimate admissions criteria which schools can apply and which affect all applicants, disabled or not. There are no disadvantages in applying for and being accepted into the school which can or should apply to disabled applicants and not to all others; no disadvantages, not even minor or trivial examples.

    It follows, therefore, that if in this clause we persist in qualifying the disadvantaged by referring to no "substantial disadvantage", that inevitably permits of less substantial disadvantage to the disabled when in fact there should not be any.

    In searching for an example where a disabled applicant would have some disadvantage, when pressed in Committee by my noble friend Lord Lucas, the noble Baroness, Lady Blackstone, suggested that where the entrance examination to a selective school was set for a particular day of the week and where the disabled applicant already had a commitment for that day of the week to attend somewhere else in connection with their disability, then that would be a disadvantage, but not a substantial disadvantage. That was a poor example. Indeed, it was not an example at all because instances arise where an applicant who is not disabled may contract flu and cannot attend. Arrangements are then made for the applicant to sit the test on another day. The same would apply to the disabled applicant. The applicants are on all fours in that respect.

    There should be no situation so far as concerns admissions criteria where any difficulty or disadvantage is greater for the disabled applicant than for an applicant with no disability. Both should be treated the same and both should be treated equally on application for admission. I should say that this amendment is grouped with Amendment No. 125. I beg to move.

    My Lords, as I explained in Committee, "substantial disadvantage" is the trigger for the duty on schools and post-16 institutions to make reasonable adjustments for disabled pupils or students.

    This amendment would remove "substantial" from the trigger in respect of reasonable adjustments to admission arrangements only. It would create a two-tier reasonable adjustment duty. The trigger for adjustments to the provision of associated services would be "substantial disadvantage" while the trigger for adjustments to admission arrangements would be merely "disadvantage". I suspect that this would cause no end of confusion for schools and post-16 providers.

    The Disability Rights Task Force recommended that "substantial disadvantage" be the trigger for the reasonable adjustment duty. We accepted that recommendation and we do not wish to consider a new trigger, not even for the admissions part of the duty. Substantial disadvantage is already a relatively low level test. In the context of the Disability Discrimination Act, it means "more than minor or trivial". It is a trigger for the reasonable adjustment duty on employers and it is well understood and effective in that context. Admission to a school, college or university has similar characteristics to securing entry into employment such as selection tests, interviews and so forth. There is no reason to believe that "substantial disadvantage" would not work as well as in the admission arrangements in education just as it does in entry into employment.

    In suggesting the removal of "substantial" in the trigger, the noble Baroness would create a situation where schools, FE and HE institutions would have to make reasonable adjustments to their admission arrangements, however slight or trivial was the disadvantage.

    We are not legislating mere inconveniences. We are legislating to ensure that schools, colleges and universities help disabled pupils and students where there are real barriers to their participation 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 would be dissipating their resources to deal with a myriad of minor difficulties instead of focusing on the bigger problems that really do need to he addressed.

    I know that I have disappointed the noble Baroness on this issue. But we feel strongly about accepting the Disability Rights Task Force's recommendation that "substantial disadvantage" is the trigger for all of the reasonable adjustment duty. I hope that the noble Baroness will feel able to withdraw her amendment.

    My Lords, I am sorry that the noble Baroness does not feel able to go down the road of making life as equal as possible in terms of discrimination as regards gaining access to colleges and educational establishments.

    The noble Baroness said that this could give way to "minor or trivial" disadvantages. But if they are minor or trivial, the adjustments required to overcome them must also be fairly minor or trivial. Therefore, it seems to me that it is possible to address the smaller matters, and to go as far as possible to make sure that people with or without disabilities are not subject to discrimination in terms of access. It is a very different kettle of fish once a pupil is in an establishment; one is talking about something more substantial.

    I am sorry that the noble Baroness does not find it possible to resort to the words in relation to the arrangement made for determining the admission of pupils to a school—the provision would also apply to colleges later in the Bill—so that disabled persons are not placed at a disadvantage in comparison with persons who are not disabled. I believe that those aims are achievable; but clearly the Government have their face set against them. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    The noble Lord said: My Lords, in Committee, my amendment was moved by the noble Lord, Lord Morris of Manchester, because I was unwell. My noble friend kindly read my speech to the Committee. The amendment received a great deal of support from Members of the Committee, but not from my noble friend the Minister. In rejecting the amendment, she said:

    "Children with statements of SEN have an enforceable right to provision … which may incur auxiliary aids".—[Official Report, 30/1/01; col. CWH 185.]

    That is the nub of the amendment: the provision of auxiliary aids.

    In replying, my noble friend the Minister said that she saw no need for the amendment. I think that she is badly mistaken. First, statements do not necessarily lead to satisfactory provision; and secondly, by no means all disabled children get statements. The Royal National Institute for the Blind has found that nearly 30 per cent of children with significant visual impairments progress through school without statements. Overall, one in three blind or partially sighted pupils do not receive test papers in their preferred format. Imagine that, my Lords—the wrong format, with children having to stand the test of examinations. That is the extent of the current failure to make proper provision. The objective of the amendment is to help non-statemented disabled children.

    The amendment does not say that schools must provide aids and services for such children. But deleting the lines in question would change the atmosphere in a subtle but profound way. It would bring the provision back under the important, vital umbrella of "reasonable duty".

    My noble friend said that she preferred a strategic arrangement with local educational authorities working in partnership with schools rather than seeking to require all 25,000 to make reasonable physical adjustments. No one said that we wanted to place this requirement on all 25,000 schools. I certainly did not say that and the amendment does not do so. So my noble friend is knocking down an Aunt Sally; something which in fact is not there and is a figment of her imagination. The amendment says no such thing. I have no theoretical objections to an LEA strategic approach so long as it is reasonable and gives disabled children an effective choice between schools that are not too far apart.

    I hope my noble friend will recognise that in practice her approach will lead to inconsistencies and inequalities throughout the country. If one school caters for deafness and another for blindness, we will have segregation by yet another name. Amendment No. 74 provides better prospects for disabled children needing auxiliary aids. They need them and are entitled to them. My proposal will make it even better because it will be accompanied by a code of practice. I commend the amendment to the House and especially to my noble friend the Minister. I beg to move.

    My Lords, if Amendment No. 74 is agreed to, I cannot call Amendment No. 75 because of pre-emption.


    My Lords, I too put my name to Amendment No. 74. I have been wondering for several hours whether I would be speaking to this amendment before or after midnight. The bells have just told me that it is after. As usual I shall be speaking in the Scottish context.

    In response to a similar amendment in Grand Committee, the Minister emphasised the fact that this clause of the Bill was strategic in purpose. By that definition I believe the noble Baroness sought to explain that each education authority would lay in facilities appropriate for various disabilities somewhere in their schools' estate. I can see her point and it is a good argument in the limited context of a city or large borough. However, the argument runs into sand when we consider the school estate of some rural and remote area local authorities, and of course in the four island groups.

    Clearly, the disabled pupil in, say, Kinlochbervie, cannot travel on a daily basis to appropriate facilities in Inverness—a journey of at least 100 miles—though it is well within the Highland council area. The requirement to board away from home is undesirable for most families. Without Amendment No. 74, rural and remote areas will not benefit from this extension of the DDA into schools. The argument about lack of resources will be supreme.

    I hope the Minister will be able to explain how the Bill will deliver itself meaningfully in the rural and remote areas of Scotland and elsewhere.

    My Lords, I have an amendment coupled with Amendment No. 74 which refers to the defence,

    "if to do so would incur unreasonable expenditure".
    However, after listening to the noble Lord, Lord Ashley, and the noble Earl, Lord Mar and Kellie, I believe that what is required is some very real flexibility.

    The example given by the noble Earl, Lord Mar and Kellie, was of a very isolated area. But sometimes in a not-so isolated area a placement in an appropriate school might be 15, 20, 30 or 40 miles away rather than across the sea and possibly even incurring an aeroplane journey, and would still present all sorts of difficulties. Taken in the round, which is why my amendment may need rethinking, it might be more economic and more effective for the provision of that child to make the modification, whatever the expenditure for that child in that remote situation, rather than to pay the cost of relocating the child, dislocating the child from his or her family and sending them to much more expensive provision.

    If one moves from there to the urban situation or even, as in many parts of the country, to the suburban situation, it is possible that not every single educational building has a loop system and the facilities to meet the provision of autistic children or the needs of partially sighted or partially hearing children. It would not be physically possible for every school and college in the land to meet all disabilities of all people. There is an issue to resolve, and the Bill requires amendment. It will be interesting to hear what the Minister has to say about the problem. As it stands, the Bill does not meet the concerns of the noble Lord, Lord Ashley, the noble Earl, Lord Mar and Kellie, or even myself.

    My Lords, we all want to ensure that disabled children are not disadvantaged in their access to education. However, I hope that noble Lords will not want to duplicate effort and create additional duties when there are already arrangements for providing auxiliary aids and services to meet children's special educational needs. We have already proposed a way in which schools will become more accessible to disabled children.

    We have addressed the recommendations of the DRTF on these issues. I pointed out in Committee that the special educational provision, made under the SEN framework, includes the auxiliary aids and services needed to meet a child's special educational needs. The DRTF recognised this and, after considerable discussion, recommended that there should not be an additional duty to provide auxiliary aids and services under the disability duties.

    The reasons that lay behind that recommendation were sound. It recognised that this duty would overlap with the SEN route and might lead to arguments about who was responsible for making the provision. Effort would go into resolving this dispute rather than providing for the needs of the child. In addition, the DRTF noted that not all aids and services are provided through the education service, so it would be unfair to expect the education provider to provide such items.

    If noble Lords have concerns about how the SEN framework operates, we should focus on improving the framework. We are doing exactly that by implementing the SEN programme of action through this Bill and by revising the SEN code of practice. It is in no one's interest, especially not that of the disabled child, to duplicate provision or to make less clear how a child can get an aid or service.

    I reassure noble Lords that we have undertaken to carry out a review of the SEN action programme in due course, to ensure that the needs of children with SEN and disabilities are being met in practice, including their access to auxiliary aids and services. On the point about making schools more accessible, again we listened to the DRTF. It recommended that the most effective way to make the greatest number of schools accessible to disabled pupils in the shortest time would be to place a strategic planning duty on LEAs and schools, and we have done this. The alternative, which is to make all schools consider making reasonable adjustments to remove or alter physical features, as implied in the amendment in the name of my noble friend Lord Ashley, would slow down the rate at which schools are being made accessible.

    The resources that are likely to be available to an individual school may not as readily stretch to building works. If we approach this strategically, and encourage LEAs and schools to work together in their planning, we can be more confident that the substantial resources available can be used to best effect to benefit disabled pupils and prospective pupils.

    I think that it is significant that the Special Educational Consortium has accepted the recommendations of the DRTF and has expressed no unhappiness with this part of the Bill. We should be reassured by that. Rural schools, except in Scotland, will be subject to the planning duty and can be made accessible. I am sure that LEAs will plan to do that. They have substantial new resources to help them—£220 million in England over the next three years. Of course, it is entirely up to the Scottish Executive to bring forward legislation for a planning duty, if it feels fit to do so.

    In the light of my answer, I hope that my noble friend will feel able to withdraw his amendment.

    My Lords, I appreciate the tenor of my noble friend's remarks. She is obviously trying to be helpful but, I am afraid, she is not being quite helpful enough. The fact that the Special Educational Consortium may not agree with me does not worry me because it is not infallible. Although I agree broadly with the consortium, which has been very helpful on the Bill, like all of us, it can make mistakes. Therefore, if it does not support this amendment, it has made a mistake, as I believe my noble friend has in failing to accept it.

    However, I welcome warmly the review that she mentioned. It is a step forward; it is a sign of good faith; and in the hope that I can persuade her even more before Third Reading, I thank her very much and beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    moved Amendment No. 75:

    Page 11, line 9, leave out ("That") and insert ("Subsection (1)").

    The noble Lord said: My Lords, I beg to move.

    My Lords, it is perfectly clear what is meant by "That" in subsection 28C(2) in Clause 12. It does of course refer to the duty on schools to take such steps as are reasonable to ensure that disabled pupils or prospective pupils are not placed at a substantial disadvantage. I fail to see how it could possibly be interpreted in any other way.

    We have already had a certain amount of debate during the passage of the Bill about the use of legislative language to reflect every-day language. This is an example of parliamentary counsel drafting in a more modern way. I should have thought that the noble Lord, Lord Lucas, might accept that and, therefore, I hope that he is able to withdraw the amendment.

    My Lords, I shall not waste the time of the House with a Division at this hour. I sincerely hope that it is not an example of more modern drafting. It is inexact; it does not say what it means. Yes, it can be interpreted by the noble Baroness and I am delighted that she has done that so that someone in extremis can refer to Hansard. But why does not the Bill refer to subsection (1), as every other piece of legislation that I have ever read has, in a proper and exact fashion? If this is modern drafting, why is it not repeated in other places in the Bill? Why not dispense with all references to other subsections within a clause and just refer to "that", "this", "what has gone before" or "as I was saying last week" in the middle of it?

    The reason for being exact is so that it is absolutely clear what is being said. All proper legislation that I have read before would have referred to subsection (1) at this point. It is sheer laziness on the part of the Government that they have not asked the parliamentary draftsman whether he would be happy with this change. I am disappointed by that attitude, but I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    The noble Baroness said: My Lords, Clause 12 requires schools to take measures to prevent substantial disadvantage to the pupil. Clause 12(3) provides for those measures, those "reasonable steps" as the Bill would have it, to be prescribed by regulation. In other words, at some time in the future, officials would draw up a list of steps which should be taken, might be taken and which should never be taken. There are two major objections to such provisions being made in regulations. The first is the usual one: that powers to regulate should be kept to the very minimum. Primary legislation should be the norm; secondary legislation should be used as rarely as possible, although recent governments of both parties have not held too well to that dictum.

    We have far too much bureaucracy as it is; indeed, any more needs to be avoided if at all possible. In the present case, it is not only possible, it is highly desirable by virtue of the second objection to this subsection. Without the subsection the school must take whatever steps it considers reasonable in the particular circumstances presented to it—circumstances as to the present premises and facilities available, and circumstances as to the nature of the disability of the pupil or pupils in question. It is worth remembering that such steps go way beyond simply providing for wheelchair disability.

    In attempting during Committee to persuade me that the regulations were necessary, the noble Lord, Lord Davies, invoked right at the end of his response the need for flexibility in the operation of these powers. The dear noble Lord has made my case for me once again. That is just it: we do need flexibility. Far from increasing flexibility, regulations actually limit it. That is what regulations do. That is why they are produced. They limit everything to what is regulated: they limit freedom of action for those "reasonable steps" that the officials drawing up the regulations have devised as being of universal application throughout the country to some average school that they have in mind, and almost certainly will never have seen.

    How much better it would be to require each school to decide for itself what steps it can take in the specific circumstances of that school, and leave it free to do so. Nothing in the response that we received in Committee removed the need for this amendment. Indeed, the reply of the noble Lord, Lord Davies, actually reinforced the case for the amendment. I beg to move.

    12.15 a.m.

    My Lords, as my noble friend explained in Committee, the regulation making powers in Clause 12 would allow us to prescribe circumstances in which it is reasonable and not reasonable for schools to have to make prescribed adjustments, and to prescribe adjustments that it is always reasonable and never reasonable for a school to have to make.

    We have no plans to take up the regulation making powers upon commencement. We wish to keep the reasonable adjustment duty under review. These regulation making powers are about giving us flexibility to deal with any particular problem that might emerge which we cannot really anticipate prior to the duties being in operation. If it becomes apparent that there are certain adjustments being requested of schools that we think would always be reasonable or unreasonable, and that it is not appropriate for those matters to be dealt with purely by the reasonableness test, we shall take up the regulation making powers.

    It is possible that schools may not be making adjustments that we consider to be reasonable in all circumstances: for example, adapting a school uniform policy for pupils whose disabilities mean that they would be placed at a substantial disadvantage if they had to comply with the full uniform policy. In our view, it would always be reasonable for a school to have to adapt a school uniform if it placed a disabled child at a substantial disadvantage. I hope my explanation that these are no more than reserve powers to be used if it is necessary to do so will persuade the noble Baroness to withdraw her amendment.

    My Lords, the Minister's answer is pretty unconvincing. Indeed, it is no improvement on the response that we received in Committee. So we should just leave it to the school to determine such matters. Schools have been so emasculated by the Government in the School Standards and Framework Act, and by so many other measures. There is so much second guessing going on, and they have regulations coming out of their ears. They know what is reasonable. They want to co-operate. They also want to adopt and support an open-access policy. As for giving the example of a uniform policy, I can think of nothing more bizarre than having a regulation that provides a country-wide policy on uniform. If a school believes that a uniform, or a particular item of uniform, is preventing the reception of a child with special needs into the school, it will be a matter for the school to decide. The LEA will very quickly spot whether a school is being reasonable or unreasonable.

    I find this provision both unnecessary and otiose. It is part of the mania to which I also fell victim when I was a Minister in the department. I have in mind the mania on the part of all departments to have regulating powers for that day over the hill when they may be needed. So often, given Parkinson's law, they will feel the need to pass regulations. We shall find ourselves passing inane regulations which tie the hands of schools. I am a free schools person. This is another point that I suspect we shall return to at Third Reading. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    The noble Lord said: My Lords, my objections to subsection (3) of Clause 12 are more specific than those of my noble friend. I can understand how subsection (3)(a) and (b) might work to advantage if particular practices arise that the Government want to eradicate and where they want to make sure that schools generally do make certain kinds of adaptation. But I cannot imagine any circumstances under which the use of subsection (3)(c) and (d) would be reasonable. What the Government are imagining here is that practices are growing up among schools of making adaptations or making concessions or changes in policy in order to accommodate disabled people and the Government want to stop it. They want to make a rule which states, "You may not take these steps. All you schools have been widening your doors and now you are not to". Why do the Government want to say that?

    Why do the Government require a power to stop schools moving towards making life easier for disabled people, because that is all that subsection (3)(c) and (d) can be used to do? What function does that play in the proper relationship between schools and disabled people and the Government? Why do the Government want to have the ability to look at what is happening in schools and to say, "We are very disturbed at this practice of accommodating blind people; you must stop it", or, "We wish to put restrictions on the way that you are adapting your premises to make them easier for people with wheelchairs"? How can the Government ever wish to do that? What possible needs can they see? Can the Minister illustrate any circumstances in which subsection (3)(c) and (d) would come into operation that one might consider reasonable? I beg to move.

    My Lords, I do not have much to acid to what I said in answer to the amendment of the noble Baroness, Lady Blatch. As I explained in speaking to that amendment, which is very similar, the regulation-making powers are reserve powers. We have no plans to take them up as soon as the reasonable adjustment duty comes into force. However, if it becomes apparent that there are certain adjustments being requested of schools that we are of the view would be unreasonable and we think that it is not appropriate for those matters to be dealt with purely by the reasonableness test, we shall take up the regulation-making powers.

    I give one example of an adjustment we would not consider reasonable. Schools may come under pressure to change their class size practices if parents argue that their disabled child is prejudiced by the addition of, for instance, an extra five pupils. In our view it would never be reasonable for a class size to have to be reduced and we do not want schools to have to spend time justifying not making that adjustment. I hope that in the light of what I have said the noble Lord will withdraw his amendment.

    My Lords, before the noble Baroness sits down, even as regards the example she has given, you would not pass a regulation to say that no school must resist the pressure of reducing class sizes in order to accept a pupil with special educational needs. Some schools would be more than happy to do that. But as regards passing a regulation to say that it would not be reasonable for schools to reduce class sizes in order to receive a child with special educational needs, is the noble Baroness giving that as an example of something that the Government would say to all schools throughout England and Wales; that is, that it would not be reasonable to do that, especially where a school is entirely happy and able to accept a child with special needs by responding in that way?

    My Lords, I did not say that. If a school is perfectly happy and has the resources and is able to reduce class sizes, that is fine. I said that the Government would not think it right that a parent of a disabled child could insist that a school had to reduce the size of the class of which the disabled child was a member. That is quite a different point.

    My Lords, I am grateful to the noble Baroness for clarification of the kind of thing the Government seek to prevent. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    moved Amendments Nos. 78 to 80:

    Page 11, line 26, leave out ("determining") and insert ("considering").
    Page 11, line 26, leave out ("a responsible body") and insert ("it").
    Page 11, line 28, leave out ("regard shall be had, in particular, to") and insert ("the factors to which a responsible body may have regard include").

    The noble Baroness said: My Lords, during the debate in Committee about the inclusion of factors on the face of the Bill, I said that I would look again at the points made by the noble Baroness, Lady Blatch, and the strong feelings expressed by others and that I would reflect on them. I have done so. I have also had discussions with interested parties on this issue.

    The amendments in my name respond, I believe positively, to the strength of feeling expressed in the debate. I recognise that for some we may not have gone far enough and Amendments Nos. 81 and 129, which we shall discuss later and which seek to remove the factors from the face of the Bill, reflect that view. However, I have sought to take account of the range of views on this point and this includes a number of responses to the consultation exercise held last spring which requested that such a steer be given on the face of the Bill.

    Earlier this week, I received a letter of support from the noble Baroness, Lady Warwick, in her capacity as chief executive of Universities UK. In this letter the noble Baroness highlights the need to strike a balance between the considerations of disabled students and those of higher education institutions to ensure that expectations and practical considerations are matched. The noble Baroness says:

    "Clause 27 helps to provide for this balance and so will make the Bill more workable in practice and for that reason we believe that it should stand part of the Bill".

    I thank the noble Baroness for her support and that of Universities UK.

    The government amendments will remove any suggestion that there is a duty on schools and post-16 providers to take account of the factors in determining whether it is reasonable to have to make an adjustment. Instead there will be a discretion for the institution to take any of the factors into account when it considers it appropriate. This is a more permissive approach.

    Some may ask why we did not go further and leave such matters to the codes. However, we remain of the view that it is important that there are factors on the face of the Bill in relation to the duties to make reasonable adjustments. The factors give clarity to providers about the sorts of matters they can bear in mind when considering what is reasonable. The factors reassure providers that they can take such matters into account when considering what is reasonable. The factors make clear to the DRC what needs to be covered in writing the codes. They also give clarity to tribunals and courts about what we consider that providers can legitimately take into account when considering making reasonable adjustments. These are important benefits which would either be lost or diluted if the factors were removed entirely. The government amendments provide a helpful balance in maintaining the factors but softening the approach to them.

    Amendment No. 100 is a technical amendment which simply removes a repetitious definition of "accessibility strategy" and "accessibility plan" already contained in Clause 24. I beg to move.

    My Lords, I am grateful for the positive response to what was said in Committee. I admit that I am still seeking to incorporate all the amendments into the Bill to judge how far they go and the degree to which they fall short. Nevertheless, I am grateful for what has been done.

    On Question, amendments agreed to.

    12.30 a.m.

    moved Amendment No. 81:

    Page 11, line 29, leave out from ("had") to end of line 44 and insert ("to the code of practice under section 53A").

    The noble Baroness said: My Lords, in moving the amendment, I speak also to Amendment No. 129. The amendments relate again to the question of what are reasonable steps. The Minister mentioned that her amendment softens the words on the face of the Bill. Nevertheless, they are still there and I think that there are grounds for objection. In our lengthy discussion in Grand Committee, I pointed out that in many senses the stipulation made under the provisions put something of a coach and horses through the inclusion provisions. I still believe that.

    The Minister has reiterated the argument that she made in Committee. She said:

    "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 into account 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.—[Official Report, 30/1/01; col. CWH 195.]

    Absolute clarity? We are talking about the extent to which a particular step is practicable and about health and safety requirements. There is anything but absolute clarity. The issues remain extremely vague.

    We are also concerned about the lack of logic in what the Government are saying. Whenever we are confronted by the words, "reasonable steps" and try to write in some illustrations of what might be reasonable, we are told that that would be too inflexible, because times change. However, now we have an example of the Government wanting to write illustrations into the Bill. They tell us that it is essential to illustrate what they want to do. That is not logical. We have been told many times that the code of practice is the right place for such detail. If reasonable steps are to be defined in the code of practice, it is appropriate to put them there in this case.

    The Disability Rights Task Force's report, From Exclusion to Inclusion,said:

    "To ensure that the new civil rights recommended are fully understood and providers of school education address the barriers that disabled children face, a Code of Practice will be essential. This should explain the new rights, the factors to be taken into account in assessing whether an adjustment or steps to provide education by alternative means are reasonable, and examples of when less favourable treatment of a disabled child may be unavoidable".

    The DRTF was clear about the fact that the code of practice was the place for such detail. It is not logical for the Government on the one hand to argue that it is too inflexible to write illustrations on the face of the Bill when we want them, and yet on the other hand not to refer this issue to the code of practice. I recognise that there is a balance to be drawn. The Minister lectured us about that in Grand Committee and said how useful it was to have illustrations in the code of practice because of the need to draw that balance.

    I say to the noble Baroness, Lady Warwick, of course Universities UK would say that, wouldn't it? We have told the Minister time and again that not enough resources are being put into the system to meet the requirements of the Bill. Universities UK and the further education colleges are very worried about the resource implications of the Bill and do not feel that the department has yet remotely understood the depth of those implications. However, the right place in both cases is the code of practice. I beg to move.

    My Lords, I support the noble Baroness in her plea. She has been very eloquent. I hope that the Minister might think again about putting this matter into the code of practice.

    My Lords, I am sorry that the noble Baroness, Lady Sharp, does not believe that the Government amendments go far enough. We believe that they provide the right balance. Perhaps I may also say to her that I believe in circumstances of this kind we should take seriously what bodies representing institutions have to say. Universities UK has made it absolutely clear to us that it prefers to have these factors on the face of the Bill. Schools have also argued for extra clarity and knowing that these are the kinds of factors they can take into account. This is, as amended, permissive. I would have thought that it goes a long way towards meeting the requirements of the noble Baroness.

    There appears to be some misunderstanding that the factors will limit the reasonable adjustment duty on schools and post-16 providers. I emphasise that that will not be the case. They will help both schools and post-16 institutions to find whether a particular adjustment for a disabled pupil or student would be reasonable. These institutions may have to consider issues such as costs, as the noble Baroness has already said, available resources and the effects on other pupils or students. If they could not take account of such factors the reasonable adjustment duty would become almost unworkable.

    I also challenge the assumption that schools and post-16 providers might be trying to avoid making adjustments for disabled learners. It is well understood in the debates we have had that most schools and post-16 providers are already educating pupils and students with disabilities and using their best endeavours to ensure that the children receive a good education alongside their peers. In the light of what I have said I hope that the noble Baroness will withdraw her amendment.

    My Lords, it is deeply unfortunate. I was giving way to the noble Lord, Lord Rix; he was giving way to me and the noble Baroness came between us. Therefore, I shall have to put the point I wish to make in the form of a question before the noble Baroness sits down.

    As regards the further and higher education sector, this matter is a particular worry. Certainly, I know that the Association of Colleges is concerned about the judgment as to what is and what is not reasonable. One suggestion is that at the end of the day they are judged after the event as to whether they have been reasonable and whether they are acting in good faith. I take it that the point also applies to schools. A third person, body or adviser is involved to test whether they are being reasonable in their attempts to fulfil their obligations under the Act so when they come to be judged, possibly by a tribunal or some other body, they can at least say that in their attempts to fulfil their obligations under the law they had taken proper advice, which is what they are minded to do. Therefore, they will be considered at the end of the day as having taken all reasonable steps.

    They are in no-man's land on this issue. They do not know at the end of the day how they are going to be judged or who they will be judged by.

    My Lords, may I apologise for intervening. I did not realise that the noble Baroness wanted to speak and neither did I realise that the noble Lord, Lord Rix, also wanted to. I shall wait to hear what he has to say.

    My Lords, I am very grateful to the Minister. As the time of night is late and I agree with everything that was said by the noble Baroness, Lady Sharp of Guildford, it would be better if I shut up and sit down, but offer my entire support for her amendment.

    My Lords, I continue to believe that it is odd that subsection (3) states that regulations will lay down what steps are reasonable. Then we have the detail set out. I remind the Minister I am not arguing in my amendment that these issues should not be dealt with, but that they should be dealt with in a code of practice which is the right place for them to be set down rather than on the face of the Bill. I have repeated arguments which the noble Baroness has put to us on previous occasions when we have suggested putting detail on the face of the Bill. I continue to believe that that proposed step is illogical and I do not think that there are advantages in dealing with the matter in the Bill rather than in regulations. I am sure that we shall return to the matter at Third Reading but, for the moment, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    The noble Lord said: My Lords, the amendment would delete subsection (4)(a) in Clause 12, which refers to,

    "the need to maintain academic, musical, sporting and other standards".

    I want that paragraph out because of the suggestion that there is something about academic, musical and sporting standards that is not already covered in paragraph (g), which refers to,

    "the interests of other pupils and persons who may be admitted to the school as pupils".

    That provision seems to me to be admirable. It should certainly be taken into account when making an adjustment. To take an early example discussed by the noble Baroness, if one reduces class sizes in which there happen to be a disabled person, one increases class sizes elsewhere, and the provisions in paragraph (g) will come into effect.

    We might also consider the two examples that the noble Baroness instanced in her letter to me, in which she discussed this amendment when I moved it in Committee. Her first example was of a school orchestra that wanted to enter a competition. It would require its performers to be of a certain standard. That, too, would be covered by the provisions in paragraph (g). Unless the disabled person who could not play music properly or who could not hold a tune was excluded, the other pupils would be disadvantaged. Her second example was of a sporting team that wanted to enter a competition. Again, paragraph (g) would come into force, because other pupils would be disadvantaged if the disabled person was not disadvantaged.

    That seems to me to be entirely reasonable. I cannot see any circumstances in which the decision not to take a particular step involving discrimination in relation to paragraph (a) should apply when the provisions in paragraph (g) do not apply. Why should an educational institution not be allowed to say, "We will not do that because it would threaten academic standards", when that would not affect the interests of pupils? What interest would it affect that would justify it being used as an excuse not to take steps in favour of a disabled person?

    Again, the matter comes down to examples. The examples that have been given so far today and in the noble Baroness's letter all come under the provisions in paragraph (g). What is paragraph (a) for? Will the Minister give some examples that fall under the provisions of paragraph (a) but not those of paragraph (g)? I beg to move.

    My Lords, we discussed this matter in Committee; that is why I wrote to the noble Lord responding to his points. I appreciate the reasonable way in which he presented his case.

    In Committee, I gave the noble Lord an example of the relevant factors and explained why they were needed in the Bill. Subsection (4)(a) refers to,
    "the need to maintain academic, musical, sporting and other standards".
    That will enable schools to preserve particular standards where there is a need to do so and only where there is a need to do so. Schools will have to decide whether there is a need to maintain a particular standard or whether a standard should in fact be adjusted. One case, which we discussed in Committee but which I shall present again to the noble Lord in the hope that I can do so with greater conviction, involves a school that enters a sporting competition with the aim of winning it. The school should be free to select a team with the greatest likelihood of winning.

    If a school has a reputation for success in this area, that factor would come into play, not to exclude disabled pupils but to ensure that schools thought carefully about their activities and the way in which they choose pupils to take part in particular activities. Obviously we would be concerned if schools were making decisions on the choice for particular activities which looked in any way to be discriminating against disabled students, but not in circumstances where it looked perfectly reasonable that the qualification for success in that area would mean that a disabled person could not take part successfully.

    The important thing is that (g) is there for those factors which affect other pupils in a general way. Individual factors do not necessarily affect general pupils in quite the same way: that is why the factors are listed separately and we have already discussed on previous amendments the desirability of the factors being on the face of the Bill. I recognise that some noble Lords disagree with the Government's position on this, but there is advantage in having a specific group of factors on the face of the Bill which clearly identify where a school could operate to preserve its reputation or enhance its standards without falling foul of any discrimination against a disabled student within the school. That is the basis of it.

    I recognise what the noble Lord is saying and the reasonableness of his presentation. I am prepared to look at the matter again, because we are here on a somewhat delicate point—the noble Baroness referred in an earlier debate to "dancing on the head of a pin". There is no substantial difference between us and I will look at the matter. However, the obvious point to establish is that the schools have to decide whether there is a need to maintain their standards. That may, in certain specific categories, lead to the necessity of discriminating, though this is done in such a way that they are not discriminating against the disabled but seeking to enhance the standard for which they have a reputation.

    12.45 a.m.

    My Lords, I understand entirely what the Minister is saying, but it still disturbs me. He is saying that a school can have a quality of academic standards and can refuse to admit a disabled person because the academic standing of the school might be threatened even though no potential pupil at that school would be disadvantaged. Suppose there is a young lad with cerebral palsy who wants to go to a particular school and the school, though comprehensive in nature, might have a high academic reputation. I can think of a Catholic school in Hammersmith which would satisfy those criteria. It might say, "if we admit this lad he will be way below our usual standard; our ratings in the league table will fall and this will threaten our academic standards, so we will tell him to go away."

    Actually, having a kid with cerebral palsy at the London Oratory would probably be welcomed anyway. It would not do the school or its pupils any harm, having a kid like that there. There would be no detriment under subsection (4)(g). Why is a school allowed to have a quality and to maintain this abstract quality which would allow it to turn disabled pupils away and deny them access to particular facilities at the school in order to maintain some ethereal quality of academic, musical, sporting or other excellence, when disabled kids would be disadvantaged by doing that and it would offer no advantage to other children at the school? I do not see that it is consistent with the Government's attitude to the difference between comprehensive and grammar schools. I tend to agree with them. I know my Front Bench does not, but I do not see the consistency. Surely it is the pupils who matter and not the school.

    A school's reputation for musical standards may be threatened by having deaf people in the school who will not be able to sing in the school choir, but how will that disadvantage other pupils? Why should schools be allowed to discriminate on that basis? I do not understand the reasoning of the Government in that regard. I hope that they will think again. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    moved Amendment No. 83:

    Page 11, line 37, leave out ("or services") and insert (", services or finance").

    The noble Baroness said: In moving Amendment No. 83 I shall speak also to Amendments Nos. 84, 130 and 131. These amendments concern proportionality. The amendments to Clause 12 relate to provisions requiring disabled children not to be substantially disadvantaged in respect of a school's admissions policy or where they are in the school in respect of their education. Similar provisions in Clause 27 relate to disabled students in higher education and they are covered by Amendments Nos. 130 and 131.

    In summary we welcome and support the policy embodied in this part of this Bill, which is to protect disabled children from discrimination at school. We 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 non-disabled schoolchildren.

    My amendments are designed to give specific practical effect to the principle in one important respect. By way of background, Clause 12 is designed

    to extend the scope of the Disability Discrimination Act 1995 by inserting into it a new provision, the proposed new Section 28C. That proposed new section would extend the anti-discrimination rules to the sphere of school education, in particular under the proposed subsection (1) which states that:

    "The responsible body for a school",

    generally the local education authority, or for a private school the proprietor, is obliged to take such steps as is reasonable to ensure that disabled children are not placed at a substantial disadvantage compared with non-disabled children, 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; in other words, what is the extent of the duty to take such steps as is reasonable. The proposed subsection (4) lists seven factors which we have just been discussing, paragraphs (a) to (g), to which regard shall he had in determining reasonableness. Paragraph (g) says that regard must be had to,

    "the interests of other pupils and persons who may he admitted to the school as pupils".

    The word "other" means non-disabled pupils and applicants.

    We support that principle. It seems to us right that in determining the rights of disabled children not to be discriminated against, one must also take into account the rights of the rest of the children, including the right to be educated properly and effectively at school. Our amendment aims to give practical effect to the Government's principle. We propose that the principle in paragraph (g) of the proposed subsection (4) should be expressly stated to include the consideration that the interests of those other 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".

    What I am saying is no more than common sense. If a disproportionate number of disabled pupils is concentrated in any one particular class or in any one particular lesson or in any one particular school—rather than being spread relatively evenly among classes and schools—the interests of the other, non-disabled pupils in that class or school are more likely to be disadvantaged. The teachers would have to devote an excessive amount of time and attention to dealing with the relatively high number of disabled children in the class or the school, increasing the disruption for the rest of the pupils. It is only sensible that the obligation in the Bill to have regard to the interests of other, non-disabled pupils should expressly include an obligation to have regard to the issue of numbers. The proper balance between the interests of disabled and other children is most likely to be achieved when the numbers are broadly proportionate.

    We know that there are schools that are equipped and have the expertise to take more young people with disabilities than would be considered normal. That is where their expertise lies. But there are other schools where the whole balance of the school would be upset if they were pressed into taking a disproportionate number of young people for whom they were not equipped and did not have the expertise and where there would be disadvantage to other young people.

    We hope that Ministers agree with our proposal. We support the compassionate objectives of the Government's provision. It is right that disabled children should not be discriminated against. But it would be a form of dogmatic political correctness if that were allowed to result in disproportionate numbers of disabled children being concentrated in any one class, lesson or school. We would not support that. The amendments advocate a practical balance which is within the realms of being achieved by our schools. I beg to move.

    My Lords, I rise to support, in particular, Amendment No. 84. There is one good school that tries to have at least one severely disabled child in each class. But the number is kept at one. That is manageable and can be contained within a teacher's capacity to look after the class as a whole. I should not like the Bill to make the organisation of that and that balance impossible to maintain. There are factors, such as those mentioned in Amendment No. 84, which are important for a school to take into account. I hope the Minister will confirm that a school may act in accordance with Amendment No. 84 even if the amendment does not get on the face of the Bill.

    My Lords, both noble Lords have emphasised the issue of proportionality. That is at the heart of the amendments proposed by the noble Baroness, Lady Blatch. We acknowledge that there might be occasional circumstances whereby admitting more disabled children or students into a class or onto a particular course may not be conducive to effective teaching for all. As I previously mentioned, the factors already allow for some consideration of proportions. However, in the vast majority of cases surely, schools and post-16 institutions will not have to consider the issue. As schools and post-16 institutions become more accessible it will become even less of an issue. We are strongly of the view that proportionality should not be added to the factors on the face of the Bill. But we recognise the concepts behind the amendments.

    The factors are, after all, not an exhaustive list. There will be other considerations that a school or a post-16 institution may be able to take into account in deciding whether to make a particular adjustment to prevent disabled children or students being substantially disadvantaged.

    That is the general position underpinning the way in which the clause is drafted. Perhaps I may now deal with the specific amendments. In Committee we contended that Amendment No. 83 was unnecessary. The funding provided under the SEN framework for auxiliary aids and services will already be covered either under that factor or more generally. It will form part of the resources available to a responsible body.

    Amendment No. 130 seeks to add another factor to the list in Clause 27. We do not consider that amendment to be necessary. I merely reiterate what I said in Committee. The factors already allow institutions to have regard to the financial resources that are available to them and the anticipated cost of taking a particular step in deciding what reasonable adjustments to make. We do not want post-16 institutions or schools to focus only on taking particular steps where there are specific grants available. That would be contrary to our whole approach.

    Under the Bill, the duties to make reasonable adjustments are anticipatory. This means that providers should look at all the resources that are available to them and not only at any specific grants which they might receive. As I have said before, we want institutions to take an altogether holistic approach to improving access for disabled students. I believe that this amendment would have a negative impact on this intention and would encourage institutions to make reasonable adjustments only where they had been given specific grants to aid them in so doing.

    Amendments Nos. 84 and 131 seek to make schools or post-16 institutions consider the proportion of disabled pupils or students in a class when considering what reasonable adjustments should be made. As I sought to identify, the issue of proportionality is important, but it is contained elsewhere in the Bill.

    In many cases, the proportion of disabled children or students in a class will have no relevance to the question of whether any particular reasonable adjustment will affect the interests of other children. For example, when deciding whether it is reasonable for a university lecturer to have to wear a clip-on microphone, it would be irrelevant to look at the proportion of disabled students with hearing impairment to non-disabled students when considering the effect of the adjustment on other students. However, obviously it would be something that we would wish to see happen in order to aid a disabled student to participate in a university group. The interests of other children or students in a class are not always going to depend even in part on the proportion of disabled individuals in that class.

    On the basis of the general position that I have put forward and given that I recognise that issues of proportionality are important in relation to the Bill, I hope that I have given a sufficient explanation to persuade the noble Baroness of the wisdom of being able to withdraw her amendment.

    1 a.m.

    My Lords, the noble Lord has provided a long response to this group of amendments and I shall want to read it carefully. The issue of proportionality will be a real and practical one for schools, in particular if the Government achieve their primary aim in the Bill; that is, to move substantial numbers of young people out of specialist education and into mainstream schools. Proportionality will then emerge as a real and practical issue.

    In the light of the unsatisfactory discussions that we have had as regards ensuring that, if young people are moved into mainstream provision, adequate support is put in place for them in terms of equipment, staffing and finance, it is my view that this will loom as a major issue following implementation of the Bill.

    As I have said, I shall read carefully the Minister's response, but it would be helpful if some recognition could be made that this problem will be understood and accommodated. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendment No. 84 not moved.]

    The noble Baroness said: My Lords, in order to make my point, I shall have to read out this paragraph in the Bill:

    "In determining whether it is reasonable for the responsible body to have to take a particular step in relation to that person in order to comply with its duty under subsection (1), regard shall he had to the extent to which taking the step in question is consistent with compliance with that request".

    That is the best example of gobbledegook that I have yet read. Recently I spoke to a friend who is a lawyer. I asked him to look at this paragraph and let me know whether anything in it caused it to be essential to any Bill, in particular the one we are considering.

    If this paragraph were removed, it would make no difference to the Bill. It is entirely otiose and merely states the obvious; namely, that if a body is,

    "determining whether it is reasonable for the responsible body to have to take a particular step in relation to that person in order to comply with its duty",

    then of course it will have regard to the extent to which it meets its obligations under the law and the degree to which it has complied with that request. The paragraph seems to me to be absurd. It is repeated in Clause 27, on page 28 of the Bill. I hope that this time the Minister will not feel duty bound, simply because it has been written up in the briefing notes, to defend what I believe is indefensible. I beg to move.

    My Lords, I am afraid that I shall not satisfy the noble Baroness. Amendments Nos. 85 and 132 would remove from the face of the Bill the scope for institutions to take into account the wishes of a disabled student, or of the parent of a disabled pupil, to have his or her disability treated as confidential in determining whether or not to make a reasonable adjustment.

    In Committee, I tried to set out as clearly as possible what effect these provisions deliver, and each of the subsections that these amendments delete are closely related to the subsections which directly precede and follow them. I have also written to the noble Baroness, Lady Blatch, on these points.

    I repeat: we want to make it completely clear to schools and institutions that in discharging their duties under Clauses 12 and 27 to make reasonable adjustments they should take into account any request that has been made by a student or parent to maintain confidentiality. The provisions in question deliver this effect. In the light of that, I hope that the noble Baroness feels able to withdraw her amendment.

    No, my Lords, I do not feel able to do so. The explanation is bizarre. It leaves absolutely nothing to the people who have to do the,

    "determining whether it is reasonable for the responsible body to have to take a particular step in relation to that person in order to comply with its duty under subsection (1), regard shall be had to the extent to which taking the step in question is consistent with compliance with that request".
    Especially in the light of my next amendment, on which I know I shall be stone-walled, it makes no sense; it adds nothing to the Bill. Removing this subsection from Clause 12 and from Clause 27 would improve the Bill. The answer given by the noble Baroness has no intellectual validity whatsoever. I am afraid that the noble Baroness, backed up by her advisers, will continue to defend the indefensible. We shall return with some gusto to this matter at Third Reading. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    moved Amendment No. 86:

    Page 12, line 8, after ("person") insert ("or by the disabled person himself").

    The noble Baroness said: My Lords, this is a serious amendment. We had an extensive debate on this issue in Committee. I am pleased to say that several noble Lords across all parties spoke in support of the amendment—so much so that the noble Lord, Lord Davies, promised that he would look at the matter again. I am taking the noble Lord at his word. I believe that he has done nothing but keep the towel round his head in considering these amendments. I hope that at this late hour he will give me a promise to bring forward an amendment on behalf of the Government to accede to the request.

    The issue is simple. In working out what reasonable steps to take in order to limit and avoid disadvantage for a disabled pupil, a school will need to take into account the nature of the pupil's disability. The full details of that disability will need to be made known to the governors. In so doing, it may well be that the disabled person will wish for those details to be kept confidential. This applies to both schools and colleges. Provision is made in this clause for such a request for confidentiality to be made and to be respected. But under the clause as drafted that request is only to be made by the parents of a disabled pupil.

    It is my contention and that of many noble Lords that the pupil himself should also have the right to make a request for confidentiality; and that request should be respected. That applies particularly if the pupil is an older pupil, a teenager perhaps, but also one as young as 10 or 11. There are young people of that age who do not really want to talk to their parents about these matters. It could be that a self-confident child would much rather that a request were made on his own account, even if his parents were willing to make it for him. It could be that an embarrassed child with disabilities wants confidentiality while his parents see no need for it. It may be that the parents take little interest or have little sympathy and regard it as a sort of neurosis on the part of the child. But, for whatever reason, there will be many occasions when the pupil should be able to make the request for confidentiality.

    In Committee, the noble Lord, in defence of his arguments to oppose the amendment, cited that young people do not have the capacity to make such an application. I have to say that that statement came 24 hours after the Government supported the notion of children as young as 11 being allowed to have their request for the morning-after pill kept confidential not only from the people around them, but also from their parents. Therefore it will not do today for the noble Lord to say that young people are not capable of knowing whether or not they want confidentiality.

    This is a serious amendment because this is probably the most sensitive area for young people, not only those of secondary school age and those going through puberty, but also the older ones going through further and higher education colleges. If they wish for confidentiality, then up to the age of 16, when parental consent would be needed, that request should be acceded to. I beg to move.

    My Lords, the noble Baroness is a pessimist. I shall surprise her. I shall not say what she anticipated.

    We discussed this issue at length in Committee. My noble friend agreed to look at the issue again. We have done so. We remain firm on the principle that the parents act in the best interests of their children. However, we believe it is right that account be taken of disabled children's requests to keep their disability confidential, provided the child making the request is of sufficient age, maturity and understanding.

    We accept in principle the spirit of the amendment tabled by the noble Baroness and will therefore come back at Third Reading to make it possible. In the light of those remarks I hope the noble Baroness will withdraw her amendment.

    My Lords, I shall do so with pleasure. Perhaps it has all been worth waiting for.

    It was a serious amendment. I am grateful for the support we received in Committee. I believe the weight of that support was probably the most influential because the Government had clearly thought about this matter before I spoke this evening. I am deeply grateful. I beg leave to withdraw the amendment in eager anticipation that I shall see an even more effective one at the next stage of this Bill.

    Amendment, by leave, withdrawn.

    Clause 13 [ Accessibility strategies and plans]:

    moved Amendment No. 87:

    Page 12, line 18, after ("environment") insert ("(including the equipment and facilities)").

    The noble Lord said: My Lords, Amendment No. 87 has been degrouped from Amendment No. 88. My understanding is that the groups will now run: Amendment No. 87 on its own, Amendment No. 88 with Amendment No. 92, and then Amendment No. 89.

    Amendment No. 87 merely picks up a discussion we had in Committee on the meaning of "environment". Various comments were made by the Minister to the effect that "environment" was intended to include various bits and pieces of equipment that may be lying around, like systems to help deaf people understand what was being said and possibly other systems to support other kinds of disabled people. It seemed to me at the time that "environment" did not include everything that the Minister intended it should. This is merely a helpful suggestion as to how that definition can be expanded in the Bill. I beg to move.

    My Lords, the amendment seeks to extend the coverage of the planning duty and to guarantee total accessibility of schools within a prescribed period. Amendment No. 87 is unnecessary, as the provision of some equipment will already be covered by the planning duty. For instance, LEAs may decide to plan for the provision of specialist furniture, such as sloping desks, special seats, variable height desks or the installation of a soundfield system. For children with SEN, special educational provision will include auxiliary aids and equipment.

    Planning to improve access to facilities for educational purposes is at the heart of planning duty. In order to improve access to facilities, an LEA may decide to install appropriate lighting or blinds for visually impaired pupils or lay appropriate carpeting to improve the acoustics of a room for pupils with hearing impairments. For those reasons, Amendment No. 87 is unnecessary. On Amendment No. 88—

    I apologise for not having recognised the importance of that regrouping. I await the presentation of the arguments on Amendment No. 88, and hope that I may be sympathetic to them.

    I have given my position on Amendment No. 87, which I hope the noble Lord will find satisfactory. I hope that he may feel able to withdraw his amendment.

    1.15 a.m.

    My Lords, that was a satisfactory response, and I shall withdraw my amendment. I am delighted that the Minister has consented to give the noble Lord, Lord Rix, top billing for his group of amendments, which is what he deserves.

    Amendment, by leave, withdrawn.

    moved Amendment No. 88:

    Page 12, line 18, at end insert ("and the teaching and learning arrangements at.).

    The noble Lord said: My Lords, top billing seems rather appropriate for this midnight matinee. Having reflected on the debate at Committee stage, I must return to my Amendments Nos. 88 and 92 regarding the content of accessibility strategies and plans. I am joined in this compulsion by my noble friend Lady Darcy de Knayth.

    Clause 13 is in general terms an excellent facet of the legislation. It is absolutely right for LEAs and schools to plan for greater accessibility, but I cannot accept a planning duty which covers only physical access and ignores access to teaching and learning arrangements. It is out of keeping with both the spirit and the letter of this legislation. The definition of disability used in this Bill does not relate exclusively to children with physical or sensory disabilities. It covers those with learning disabilities too. So why plan to provide access only for a subset of disabled children? Those who are excluded are in fact the largest group of children with disabilities. There are hundreds of thousands of children with learning disabilities who have a right to be properly considered along with all other children.

    During the Committee stage, the noble Lord, Lord Davies, told the House that the Government's drafting of Clause 13 was based on their acceptance of a Disability Rights Task Force recommendation. As he referred to the task force, I hope that the House will permit me to read a little further into that recommendation, numbered 4.10, which says:

    "This duty should cover both adjustments for physical access, including those for children with sensory impairments and for access to the curriculum".

    Furthermore, in March 2000 the consultation document of the Department for Education and Employment signalled that there would be a duty on schools to,

    "plan to increase systematically the access of their premises and of the curriculum to disabled pupils".

    What has changed since March to make the Government curtail their original plans and take a very partial view of the recommendations of the task force? I look again to answers offered at the Committee stage. I was told that accessibility plans were not the right vehicle for planning for extra teaching, learning support assistants, curriculum adaptations and so on. It was suggested that they might be a burden. I believe that a comprehensive strategic planning duty will positively help and support schools and LEAs in meeting their obligations. It should also help them to provide families with better information about support available both now and in the future.

    It has also been suggested to me that I need not worry because planning for access to the curriculum is already covered by existing duties on schools and LEAs. However, I believe that there should be absolute parity in planning to support those with physical, sensory and learning disabilities and that schools and LEAs should be accountable to the Secretary of State in that respect.

    Last week, I was fortunate enough to have an opportunity to discuss these amendments with the Minister in another place. We had a characteristically co-operative exchange for which I am most grateful. But during our conversations, I suggested that if planning for access to the curriculum is already covered by pre-existing statutory obligations, it should say so here on the face of the Bill, in this clause, so that appropriate links are made.

    If the Minister can convince me this morning that there is a statutory duty on schools and LEAs to plan for access to teaching and learning and that can be successfully linked to duties in this clause, then I shall happily withdraw my amendment pending a government amendment at Third Reading. Such reassurance is absolutely critical if we are to accelerate progress in realising the rights of disabled children. I beg to move.

    My Lords, the noble Lord is absolutely right. If you are going to put in the physical environment without the teaching arrangements, you are putting the cart before the horse, or any other cliché in relation to lack of movement that you can come up with. It is more important to have this sort of arrangement in relation to the teaching curriculum. When all is said and done, it is easier to put ramps and make adaptations and so on than it is to arrange a timetable. That is a one-off thing which can be done and then forgotten about. If that degree of flexibility is not built in, a series of Chinese walls will be constructed which will keep people out.

    This amendment goes to the heart of the matter. If we have to choose between the two, the physical environment is the factor which should not appear on the face of the Bill but should appear in secondary legislation. The noble Lord is absolutely right.

    My Lords, I apologise to the House for being somewhat pre-emptive in attempting to reply before I heard what both noble Lords had to say on the amendment. I have benefited greatly from their contributions.

    I have some sympathy with the nature of the amendment. I want to establish quite clearly that, of course, schools must provide for the needs of all children, including the full range of disabilities—physical, sensory and the learning disabled.

    I know that there is concern that the planning duty appears to be too restrictive because it appears to apply to the physical environment. There is concern that those pupils with learning disabilities will not benefit as fully as they might from the particular message, since physical accessibility to a building is not relevant to their particular disability.

    But the planning duty should not be seen in a vacuum. Rather, it needs to be seen alongside other provisions for protecting the rights of disabled children in the existing SEN framework. The planning duty is part of a wider picture.

    Within that wider picture, it is clear that the issues with regard to the curriculum are important. First, I want to emphasise that teachers already plan their lessons. We do not want to impose additional administrative burdens on them when they are already conditioned by the framework of the national curriculum and the statement on inclusion which schools must follow. The foreword states that:
    "An entitlement to learning must be an entitlement for all pupils. This National Curriculum includes for the first time a detailed, overarching statement on inclusion which makes clear the principles schools must follow in their teaching right across the curriculum, to ensure that all pupils have the chance to succeed, whatever their individual needs and potential barriers to their learning may be".
    So it is crystal clear that schools already have to think about the needs of disabled pupils in their teaching. I am confident that the framework with regard to this Bill—the rights and duties contained in it—will provide for disabled children in a practical and pragmatic way.

    Although I cannot accept the amendment as drafted, I am very much in favour of the sentiments and the concept behind it. I shall indeed do what the noble Lord suggested. He said that if I could not accept his amendment, we ought to look towards bringing forward a government amendment on Third Reading that would embrace the ideas behind his amendment. That is what I undertake to do.

    My Lords, I am extremely grateful for that response from the Minister. Unfortunately, I am off on the road to Morocco next week. Therefore, I shall not be present at Third Reading to welcome the government amendment. However, I hope that we can discuss the matter before I depart from these shores in the knowledge that, when it comes to the next stage, I shall have a most elegant and effective understudy in my noble friend Lady Darcy de Knayth. I am sure that she will graciously accept the amendment as proffered by the Government. With those few words of thanks, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    moved Amendment No. 89:

    Page 12. line 23, leave out from ("schools") to end of line 25 and insert ("so that within the time period prescribed all mainstream schools within the area of the local education authority will be capable of providing for disabled pupils; and
    (b) in preparing their accessibility strategy, must have regard to the requirement to ensure that, over a prescribed period, mainstream schools in the area are accessible for disabled children in terms of their policies, practices, procedures, curriculum, and availability of auxiliary aids and adaptations.").

    The noble Lord said: My Lords, the intention of this amendment is to require education authorities and mainstream schools to work towards the goal of properly supported inclusion for disabled pupils within a fixed timescale. Its aim is to strengthen the planning duty to require LEAs and schools to move towards the goal of mainstream education for children, whatever their needs and abilities.

    As I said on an earlier amendment, quoting Linda Shaw of the Centre for Studies on Inclusive Education (CSIE), we are discussing here one of the most important anti-discrimination measures ever to be considered by your Lordships' House. That is why the CSIE's call for full and meaningful inclusion is entitled to be heard again in this debate. A human rights approach to disability policymaking requires not the setting by schools of their own agendas, but agreement to a common goal of entitlement to properly supported mainstream placements.

    It is also vital for the achievement of equal opportunities that a planned timetable for supporting the full diversity of pupils in mainstream must cover the accessibility of teaching and learning arrangements, for which the amendment provides, as well as physical access. Inclusion without proper and adequate support for such access—I most strongly emphasise the importance of adequacy of support—is not inclusion, but dumping. We cannot rely on education policy alone to make the necessary changes towards an inclusive curriculum. We also need legislation that guarantees all children's rights to properly supported mainstream placements and safeguards against discrimination. This is the human rights approach to disability. It is at the heart of this amendment.

    In 1997, a review of research on inclusion conducted by Judy Sebba for Barnardo's found that,

    "Pupils with identified difficulties or disabilities appear to benefit educationally from schools developing inclusive education by making significant gains in reading, language, work study skills and living skills. Pupils who do not have identified difficulties or disabilities appear to attain as good or better standards and make the same or more progress in classrooms developing inclusive education as they do in traditional mainstream classes".

    There is also growing evidence that schools can develop the capacity to support the full diversity of pupils by adopting a flexible approach to teaching and learning that adapts activities and curricula to pupils' needs and interests. A major study of inclusion in the United States in 1995, undertaken by the National Centre on Educational Restructuring and Inclusion, found that students representing all legal categories of disability, at all levels of severity, were being effectively included in mainstream education. Here in the UK two recent Channel 4 programmes entitled "Count Me In" featured a number of primary and secondary schools actively engaged in increasing their capabilities of catering for a wide diversity of pupils.

    At one of the schools featured, Cleves Primary, a differentiated approach to learning enables the school to include children with profound learning difficulties while at the same time working to raise the standards of achievement of all pupils. CSIE's case study of Cleves gives examples of how schemes of work can be adapted so that the full diversity of children can be included. The CSIE has also provided examples from other schools of how curriculum adaptation works in individual cases. Cleves is in the London borough of Newham where the local education authority has a policy commitment to recognise the rights of all children to learn together and aims to make it possible for every child, whatever special educational needs they may have, to attend their neighbourhood school.

    The Index for Inclusion, published by CSIE, is a planning tool designed to help schools to become more inclusive through a process of self-review and development. The index involves schools in

    restructuring their cultures, policies and practices so as to be able effectively to respond to the diversity of needs in their locality.

    Thus there is no lack of evidence to demonstrate the potential of inclusive education. Yet both research and experience show that whether disabled children benefit from mainstream education depends not on any objective assessment of their needs and potential but on how schools develop their capacity to respond to diversity. It is just not true that so-called inherent problems and "deficits" make it impossible for many children to be included.

    Much to their credit, parents of such children continue to struggle for inclusion with LEAs and schools which are unwilling or unprepared to welcome them. Cases documented by CSIE—and which, as she will confirm, I made available to my noble friend Lady Blackstone—demonstrate the stress and emotional strain involved for families in achieving what many of us believe should be theirs by right. A stronger planning duty—as suggested in this amendment—would seek to ensure every child's right to a properly supported mainstream placement, rather than making inclusion dependent on parental struggle and commitment or the goodwill and good practice of particular schools and LEAs. In order to work towards a situation of mainstream entitlement for all it is reasonable and responsible now to require all schools to plan, within a specified period of time, for disabled children and young people of school age to become a part of, instead of being cast apart from, the local communities in which they live. I beg to move.

    1.30 a.m.

    My Lords, I am sure that we all admire the way in which my noble friend presented the case for the amendment and the strength of his conviction as regards how much needs to be done. We also admire his identification of strategies to achieve that. I immediately respond by saying that of course his objectives are shared by the Government, as is shown by measures that are in hand.

    The problem with regard to the amendment, however, as I think he might recognise, is that it presents a number of obvious difficulties. The prescribed period might be two years or 20, whatever would be practical. I am sure that a period of 20 years would so disappoint my noble friend that he would not regard that as a satisfactory response. We have difficulty with the vagueness and the geographical dimensions. I recognise that my noble friend seeks to be modest in his demands that one school and LEA should be able to admit a particular disability. However, if there were, for example, a school in Bude in eastern Cornwall able to cope with a disability but the student who wished to take advantage of it lived close to Land's End, that would scarcely be a practical solution. So there are difficulties with regard to the amendment but not with the sentiments underlying it.

    I emphasise again—my noble friend will have heard the earlier debate—that teachers already have to think about how to adapt the curriculum to disabled pupils. And we have had an extensive debate about the provision of auxiliary aids and changes to physical features, both of which are exempted from the duty to make reasonable adjustments for very good reason, as we discussed earlier in our debate on Clause 12.

    I respect fully the arguments that my noble friend has presented. I recognise the strength of conviction behind them. The objectives underlying them are the objectives behind the amendment. However, the amendment raises sufficient difficulties for us to ask my noble friend to withdraw the amendment confident in the fact that the Government will seek to hit those objectives by a slightly different route.

    My Lords, while I am grateful for my noble friend's reply, as I was for my noble friend Lady Blackstone's response to my amendments on inclusive education in Grand Committee, I should like others interested in the amendment to have an opportunity to consider what my noble friend has said and to reflect on the remaining opportunities still open to them to press their case further. On that basis, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    moved Amendment No. 90:

    Page 12, line 25, at end insert—
    ("( ) In preparing their accessibility strategy, each local education authority must include the estimated costs, at current prices, of the implementation of such improvements, and must if the cost cannot be found locally forward to the Secretary of State these estimated costs with a request for capital grant to cover those costs for the years in question.").

    The noble Baroness said: My Lords, in moving the amendment, I speak also to Amendments Nos. 93, 96, 147, 148 and 149.

    In Committee, we grouped together a large number of amendments for which the central theme was that measures taken in the implementation of the requirements of the Bill need to be costed. Those costs have to be met before implementation can be effected. That still seems to me an eminently sensible approach to the Bill but one which the Government Front Bench dismiss as being totally unnecessary. I hope that the Ministers have reread our deliberations in Committee, as I have, and will now conclude that those amendments contain the key to the effectiveness of the whole Bill and cannot be so lightly brushed aside.

    The specific requirements of the Bill must be properly costed. That is all the amendments ask for: transparency and some realism so that everyone knows what the challenge is. Having been costed, if they are to be materially developed, they must be properly funded. In practice, the Bill will take us no further forward in helping children and young persons with disability or learning difficulties. It will merely lie on the statute book, no more than aspirational.

    Much has already been done as a result of previous legislation. I know that those actively concerned for these young people welcome the progress made since the early 1980s. Clearly those people will expect that progress will be maintained. Their hopes will have been raised by the introduction of this Bill and their hopes will be dashed if nothing practical comes from it.

    The first group of the amendments seek to amend the provisions whereby local education authorities, maintained schools and independent schools must in future lay down and publish plans as to measures they will take to improve still further access to and provision within these schools and institutions for pupils with learning difficulties and/or disability. Such plans have to be forward plans and updated each year.

    Amendment No. 90 says:

    "In preparing their accessibility strategy, each local education authority must include the estimated costs, at current prices, of the implementation of such improvements, and must if the cost cannot be found locally"—

    I stress those words—

    "forward to the Secretary of State these estimated costs with a request for capital grant to cover those costs for the years in question".

    Other amendments relevant to schools were similarly phrased, except that in the Bill the plans are called accessibility strategies when done by an LEA and accessibility plans when done by a school.

    I have also suggested that the provision that the costings for the plan or strategy for maintained schools should be covered by a request for grant from the Secretary of State should also apply to independent schools, except that seeking a grant from the Secretary of State would be optional. In either case, the LEAs and the schools would be exempt from implementing the plans if they had no funds to do so.

    At one point in Committee, the noble Lord, Lord Davies, seemed to think that we were asking for money merely to prepare the plans. He is right that the preparation of the plans—the surveys, the architect's fees and so on—will be costly, but that will be as nothing compared with the cost of implementing them. We have sought to focus on the implementation of the plans.

    It is pointless for a local authority to go to the expense every year of preparing detailed plans of what needs to be done in all its schools and institutions if the much greater expense of putting those plans into effect is not likely to be forthcoming in the near future. Similarly, the legal obligation on independent schools to prepare annual plans—it is not just an option in the Bill—will be costly. Again, it would be a pointless exercise unless the schools had access to the finance needed to implement them.

    Although Ministers will refer to the vast sums already made available to LEAs and schools, the financial appraisal in the Bill is still unrealistic. In Committee, the noble Lord, Lord Davies, tossed in the figure of £220 million available to schools in England through the schools access initiative, but even that is over three years, so it amounts to about £70 million per year, spread over 25,000 schools. It looks slightly different in that light.

    We also need to bear in mind that local authorities are already saying that they do not have enough money even to implement the recent teachers' pay award. They certainly have no spare cash waiting to be spent on the Bill.

    We have tabled further amendments to provide that all proposed capital works, extra staffing or extra facilities need to be properly costed and funded.

    Clause 40, which is entitled, "Expenses of the Secretary of State", says:

    "There shall be paid out of money provided by Parliament any increase attributable to this Act in the sums so payable under any other enactment".

    As the noble Lord, Lord Davies, kindly said in Committee:

    "The Bill currently makes no provision for expenditure".—[Official Report, 6/2/01; col. CWH 213.]

    That puts the issue in a nutshell. Without provision for expenditure in the Bill, what are we to believe? I do not mind how the Government choose to put teeth into Clause 40, but teeth it must have. Amendments Nos. 147, 148 and 149 would alter Clause 40 to read:

    "There shall be paid out of money provided by Parliament the increases in expenditure"

    not just any increases—

    "attributable to this Act".

    Deleting the final words of the clause, which provide that the money, if any, will come out of provisions made under Acts of Parliament, will ensure that Parliament will have to provide money for the costs of this particular Act. Leaving the money to be squeezed out of other existing allocations will result in no money at all. If there is nothing left, nothing can be squeezed out.

    The Act will have to be funded, if it is funded at all, by both direct capital and revenue grants specifically designated for the implementation of the provisions of the Act. The Secretary of State cannot do that until he knows how much it will all cost and until each school and local authority costs its forward plans, both capital and revenue expenditure, and forwards the costs to the Secretary of State. All of this depends at the very start on a clear and specific commitment from the Government that the Bill can, and will be, specifically funded.

    I say that because the day-to-day core funding of education authorities and cascading down into schools, does not at present allow flexibility for substantial extra spending on a new Bill which is about to become a legal obligation for both LEAs and their schools. Therefore, it is a question of injecting some realism.

    I am sure that whoever responds to this amendment will find it difficult to respond to the financial side of my request for putting these matters on the face of the Bill. I have some sympathy with any response which is made in that regard. However, I believe it is important to at least meet the requirement for costing and to have some understanding of where and how those resources will be met so that local authorities and schools are enabled to make the Bill a reality. I beg to move.

    1.45 a.m.

    My Lords, I fear that the effect of these amendments would be to erect barriers to increasing the accessibility of schools to pupils with disabilities. As I said before in Committee, these amendments are unnecessary and potentially burdensome. In preparing their strategies and plans LEAs and schools must take into account the anticipated resources which will be available to them over the planning period. The duty is to plan within the resources available to the responsible body. That is implicit in the Bill. It does not require spelling out, but I am happy to confirm that that is the case.

    The proposal that responsible bodies should forward their estimates to the Secretary of State creates another burden. It seeks to take away the initiative from LEAs and schools to plan locally from the resources available to them and to make their planning decisions dependent on the central government's decisions. We fear that it might give some of them the excuse for doing very little.

    The noble Baroness, Lady Blatch, suggested in Committee that we are raising the hopes of people only to dash them. We are doing nothing of the sort. We are creating a new duty and applying it in a commonsense way which reflects the reality of the schools. That will reassure people that we are creating a sustainable duty which will continue over time to increase the accessibility of schools to disabled people.

    As the noble Baroness indicated, we are making substantial additional resources available to the Schools Access Initiative. I know that she derided it as an insignificant amount. Next year it will be five times the amount available in 1996, so the Government are serious about ensuring that schools receive additional resources. Support for capital over the next three years is increasing substantially. Those are some of the resources that are available to the LEAs and schools.

    These are not just aspirational plans, but plans which the schools and the LEAs must implement. We have properly considered the questions of cost. The duty of the local authorities and the schools is to plan to increase accessibility over time. None of us expects vast improvements to be achieved overnight or even in one year. We require that responsible bodies should have plans consistent with the available resources.

    The noble Baroness raised again the question of the ability of independent schools to make plans and to implement them without new resources. We of course maintain that disabled pupils should benefit from the planning duty in whatever school they are educated. There can be no exceptions. Our proposals are reasonable in terms of resource implications for all schools.

    In preparing their plans, independent schools will need to take into account anticipated resources that will be available to them. We do not assume, as the noble Baroness suggested in Committee, that independent schools will have a pot of gold to spend on improvements to improve access, but we think it fair to require them to plan within the resources available to them.

    The Government maintain that the planning requirements are obligatory on all educational institutions. We recognise that planning over a period is involved, but we have given a clear earnest of our intent about how to develop the Bill's policies.

    My Lords, I am slightly bewildered by the noble Lord's opening statement that the amendment would erect harriers. Having plans costed does not erect barriers; it helps to make it known what the plans are and what they would cost. That will give people an idea about how the plans could properly be met. The suggestion is extraordinary. He also suggested that the amendments are unnecessary and burdensome. Making the plans will be burdensome -we have already made that point. Are the amendments unnecessary? I do not know. The plans have to be made anyway, and my proposal involves only one more step. Architects, surveyors and all the other people who have to carry out survey work to bring the plans to fruition will have done their work. All that remains is the need to quantify the costs and make that known to the relevant bodies. Schools, LEAs and, for grant purposes, the Government will wish to know about that.

    The noble Lord seemed to confuse the plans with local authority funding. As I understand the Bill, the plans are forward-looking; they are not today's plans. Very few local authorities, even with the so-called three-year funding, know at this time of year what their grant will be and what latitude there will be beyond the core funding of their services in relation to additional duties. The Bill will impose such a requirement on them. The idea that they will have all of that information to hand is not true.

    I did not deride the sums of money that have been made available. I simply stated, as a matter of fact—the noble Lord said that I did so with a flourish—that the money was for a three-year period and involved 25,000 schools. That is an obvious point.

    The noble Lord went on to say that disabled pupils will benefit from the planning duty. They will do so only if the plans are materially delivered and properly validated. Those pupils will not benefit from the plans, although the plans will raise expectations and create aspirations. However, unless the plans are realised, no one will benefit. Planning in itself is not a virtue, but it is a sensible way to ensure that those funds that are spent are spent effectively and that that is done in the interests of young people with disabilities.

    I shall read the Minister's comments carefully. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    moved Amendment No. 91:

    Page 12, line 42, at end insert—
    ("(d) any setting recognised by an early years development partnership established by a local education authority under section 119 of the School Standards and Framework Act 1998").

    The noble Baroness said: My Lords, the amendment returns us to early years settings and again I speak on behalf of the RNIB. The amendment would require all early years settings to be recognised by an early years development and child care partnership and for them to have an accessibility strategy. I use the jargon of the Bill for the purposes of the amendments, and I am speaking to Amendments Nos. 91 and 155.

    First of all, we welcome the fact that all early years and child care partnerships are required, by guidance issued under the School Standards and Framework Act 1998, to have a clear strategy to allow children equal access to child care and early educational services regardless of their special educational needs or disability. The strategy will perform a similar role to the accessibility plan which local educational authorities will be required to produce for their schools.

    However, with the exception of state-run nursery schools, there will be no duty for individual settings—private voluntary sector nurseries, child minders and after-school holiday child care schemes—to have their own plans. These local accessibility plans allow for the detailed planning necessary to turn the strategic plans into reality. The RNIB argues that a requirement on individual early years and child care settings to produce plans would be beneficial for the following reasons. It would be consistent for early years settings to be under a similar duty to plan for making their services more accessible to young people with disabilities. Early year settings other than state-run nurseries already have duties as service providers under Part III of the Disability Discrimination Act, but there is little guidance as to how to fulfil those responsibilities, and requiring all settings to plan for accessibility would reduce the number of disputes because the settings would anticipate the issues before they arose.

    An accessibility plan would also be a defence before a tribunal or at a county court. One hopes that it does not go that far. Requiring those settings providing after-school and holiday care to have accessibility plans would help the Government make their policy of encouraging parents, and especially single parents, to work. If after-school and holiday care settings have no duty to plan for accessibility, there is a danger that parents will be limited to working school hours during term-time only if there is no accessible after-school holiday provision for the disabled child. I know that a good deal of work has been done in that respect. I beg to move.

    My Lords, I very much appreciate the way in which the noble Baroness has proposed these amendments and I appreciate the significance of the outside body on whose behalf she spoke. I shall seek to give as much reassurance as I can on these important issues which she has identified.

    Early year providers will be covered either by Part III of the Disability Discrimination Act or the new disability duties in this Bill. Most private and voluntary providers of early years education have been covered by the Part III provisions of the DDA since December 1996, and the Bill will bring all these providers under the DDA. Providers who are covered by Part III of the DDA have to comply with the reasonable adjustment duty. The duty under Part III of the DDA includes provision for making changes to physical features and providing auxiliary aids and services. These are anticipatory duties which of themselves entail an element of planning.

    We do not want to place an additional duty on them to plan. That would be confusing and impractical. Early years provision in maintained schools, independent schools and non-maintained special schools will be covered by the new duties in the Bill, including the duty to plan to increase physical accessibility. I hope, with the explanation that I have given, that the noble Baroness will be prepared to withdraw the amendment.

    My Lords, I will read carefully what the noble Lord the Minister said and will also discuss with the NRIB between now and the next stage of the Bill to get their response to what has been said. In the meantime, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendments Nos. 92 and 93 not moved.]

    2 a.m.

    The noble Baroness said: My Lords, I seek to remove yet another provision for regulations to be made. Law by what is, effectively, government diktat is bad law. Nevertheless, there are, as I have to accept, changing circumstances where the provisions in primary legislation need updating or modifying through secondary legislation, but this is not one of them.

    I also find deeply depressing the pressure on us to complete this Bill tonight, only to see it severely guillotined in another place. We know that the plan in another place is for the Bill to be shoved through in a day. There will be almost no debate and once again the only scrutiny that the Bill will receive will be that carried out by this House. If that can be denied no one will be more pleased than me to know that it will receive a proper Committee stage and full debate in another place.

    It follows that the Government must already know what they intend by the use of the terms "education" and "an associated service" in the Bill. Those terms will not change their meaning from year to year and so there is no need for regulations. Let us now see the Government's interpretation of the two terms which are on the face of the Bill. If we do not believe that such a definition is accurate enough or clear enough or is just plain wrong, let Parliament have an opportunity to consider, discuss and determine the matter.

    Perhaps in reply the Minister can tell us what is meant by "education" and by "an associated service" within the context of the Bill. If the noble Baroness or noble Lord is able to give a definition, that would be a good reason why they should appear on the face of the Bill. I beg to move.

    My Lords, we debated this amendment in Committee. These regulations are about clarifying the coverage of the planning duty; they underpin the planning duty. They will ensure that LEAs and schools are clear about what the planning duty entails.

    Clearly the duty needs to embrace education offered to disabled pupils and disabled prospective pupils at a school. It will do that. It would be unrealistic and unreasonable to expect schools and LEAs to plan for activities which take place away from school premises and over which they have no control, so we need to be clear that it is about education offered at a school.

    When speaking to the amendment in Committee the noble Baroness said that education is more than just the teaching of English, mathematics and science. I agree with her. The regulations will provide clarity in particular for those areas not traditionally seen as education, but which form part of a school's life; for instance, the playground or the dining hall, so that disabled students can feel part of the total school community.

    Whether a particular activity is offered as education or as an associated service for those purposes is largely irrelevant. The key point is that everything so described will be covered by the planning duty. In the absence of such regulations, the issue of whether any particular service is caught by the planning duty will be entirely a matter of interpretation. We want to ensure that schools and LEAs are clear about what their duties involve. In the light of that explanation, I hope that the noble Baroness will withdraw her amendment.

    My Lords, I do not believe that schools or LEAs will be in any doubt as to what they need to do to accommodate young people with disabilities in their schools. I certainly do not believe that they need another raft of legislation with explanatory notes accompanied by another box of papers, especially as the Government have a mission to reduce such information to schools. It does not do the schools or the staff of those schools any service to believe that they can meet their obligations under the Bill only if yet more regulation comes down to them.

    In answering the amendment, the noble Lord spoke of the terms "education" or "an associated service" as being irrelevant. They are not irrelevant because they are actually the words on the face of the Bill. The Bill states:
    "Regulations may prescribe services which are, or services which are not, to be regarded for the purposes of this section"—
    that is the planning duty—
    "as being (a) education: or (b) an associated service".
    I despair if there is to be regulation which states that the dining-hall must be prepared to receive young people with disabilities. I regard teachers as being far more intelligent than that. They certainly do not need vast tracts of legislation. But, I suppose that we cannot stop this great leviathan. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    moved Amendment No. 95:

    Page 13, line 37 leave out from ("to") to end of line 45 and insert, ("the arrangements and facilities available and planned for the assistance of disabled pupils").

    The noble Baroness said: My Lords, if one lists some items that one expects to find in a report, by implication one considers other items not so listed to be less important or even unimportant. It follows that if one lists four areas of activity that one wants to see in the Government's annual report, those four areas will quickly become the only areas reported upon. If, on the other hand, one says that one wants to know all about the arrangements and facilities both existing and planned, then everything is covered, not just those four areas. That leaves the schools to use their professional minds and judgment about what in fact is applicable and pertinent to those reports.

    The amendment greatly simplifies the clause. It makes it fully encompass what is needed. In Committee, the noble Baroness, Lady Blackstone, in her reply claimed that changing the wording would probably cause confusion for maintained schools.

    They are not infant children; they are professional people. They know what their obligations are under the Bill. They know what should go into reports. They do not need an ABC guide for absolutely everything. And they must be free to use their professional judgment.

    Again the noble Baroness in her reply said that being vague about the information to be included in the annual report will probably be unhelpful to schools. Indeed it would be, but the amendment is far from being vague, whereas a limited list of what is to be included becomes the only item that will be included. I press the Government again to trust in our professionals to do the job that they were trained to do. I beg to move.

    My Lords, of course there is a balance to be struck between placing duties on schools and reducing burdens on them. We recognise that. Maintained schools are already required to include certain information as to what they have done in relation to disabled pupils. We are not adding extra burdens. They will simply now have to include their accessibility plans in their governors' reports too, and the plan will obviously have been drawn up.

    The noble Baroness, when speaking to this amendment in Committee, said that she wanted to make the requirement more understandable. We are confident that the provision is entirely clear as it stands. It is specific and sets out precisely what information maintained schools are required to provide. It also ensures consistency, as all maintained schools are required to provide the same information.

    Changing the wording will simply cause confusion for these schools. Being vague about what information is required to be included in the governors' annual report will not help maintained schools. We would not want a position where schools were interpreting what is required in different ways. That does not promote consistency. We do not want to end up with schools producing different information depending on how they interpret the provision.

    It also takes away the explicit requirement on maintained schools to publish information as to their accessibility plan in their governor's annual report. It is right that parents of disabled pupils and disabled prospective pupils have the information that they need, especially when choosing potential schools. That makes it even more important that schools are clear about what information to provide.

    I should like to reassure the noble Baroness that I consider her concerns to be unfounded. I cannot see what is achieved by the amendment. I believe that the specifications in the Bill are clear.

    My Lords, one matter on which I do agree with the noble Lord is that the number of regulations released only today will certainly place burdens on schools. As for the policy of what appears to be dull uniformity, perhaps I may say this to the noble Lord. Schools are different, areas are different and children's needs are different. Those differences would be reflected in the plans. If we leave it to schools to determine for themselves what they need to plan for in their reports on receiving young people with special needs, it will be done well.

    The notion of putting in place a completely uniform set of rules and regulations and sending that information down to schools to ensure that they all do the same thing is not helpful. Armies of people in the department will then pore over the plans. We should set schools free to use their professional judgment. They will do the job far more effectively than will the man in Whitehall.

    We shall return to this matter, but in the meantime I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Clause 14 [ Accessibility strategies and plans: procedure]

    [ Amendments Nos. 96 to 99 not moved.]