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Independent Assessment Of Educational Needs By Local Education Authority
29 January 2001
Volume 621

(" . In section 323(3) of the 1996 Act (assessment of educational needs), after "an" insert "independent".").

The noble Lord said: In moving Amendment No. 82 I wish to speak to Amendment No. 83. Amendment No. 82 touches on a matter which we raised earlier concerning educational psychologists and the way in which their independence has been compromised. This is merely a suggested way in which we might start to move back towards the assessments being made in an independent way, not one which is too influenced by the requirement to conserve cash, which may be afflicting a local authority.

Amendment No. 83 picks up what seems to me to be a loophole in that, if a review had concluded that an amendment should be made, the local authority at present has very little obligation to make that amendment. It can just sit on its hands and wait for the tribunal process to take place, whereas, if it was concluded in a review that an amendment should be made, it seems sensible that the authority should be under an obligation to do so. I beg to move.

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I fear that I must disagree with the noble Lord with regard to Amendment No. 82. It looks to me as if this is premised on the assumption that assessments conducted by LEAs are biased and unprofessional. I do not believe that to be the case. After all, we look to the staff and professional associates of LEAs and other authorities, such as health and social services, who assist LEAs with assessments, to use their professional skills and judgment to complete full assessments of children's needs and make appropriate recommendations.

It is difficult to know what "independent" means in this context. Surely an LEA's own educational psychologist is more likely than anyone from outside the locality to have knowledge of local special educational needs provision, which would help LEAs and parents to settle on the appropriate placement. They are also likely to have good links with staff in the schools, which can work to the advantage of the child. We are not saying that the same will never be true of independent educational psychologists—I do not in any way want to cast aspersions on their role—but I hope that it is recognised that we can trust professionals in local employ to do a proper job. If parents do not agree with the statement, they have the right of appeal to the tribunal.

The same considerations apply to Amendment No. 83. Reviews of statements can be seen in the same light as the advice that goes to LEAs when they are drawing up statements. LEAs have to apply their professional judgment to any recommendation they receive following annual reviews. They should not have that judgment fettered by the amendment. Should LEAs decide not to amend statements in the way that these recommendations suggest, parents have the right to require a reassessment of their child's needs and to appeal to the tribunal.

Well intentioned though I know the amendments to be, they are unnecessary against the background of our experience of the way in which local authorities professionally address themselves to these tasks.

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I see that we will not get any further this evening. The noble Lord is being a little "rose-tinted" in imagining that local authorities can be put under extreme financial pressure and still expected to make totally independent judgments on how much money to spend on special educational needs. There has to be a trade-off between one and the other. Over the past years we have seen increasing pressure put on local authorities, resulting in a shortfall on statements being made. However, I do not need to extend that discussion this evening. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[ Amendment No. 83 not moved.]

Clause 9 [ Duty to specify' named school]:

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moved Amendment No. 84:

Clause 9, page 8, line 19, leave out ("not").

The noble Baroness said: I do not know whether I am alone in this, but I find this the most depressing room to work in. I am extremely cold. On the first day I ended up with a blinding headache and I have another today. I find the lighting oppressive and I find it distasteful to work here. If health and safety rules applied, I think we might have a justifiable complaint. It would be helpful to know when this Committee Stage will end tonight.

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I understand the privations we are all suffering and we are certainly due to finish shortly. I wondered whether the next group of amendments could be moved and dealt with and then we could adjourn.

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I shall speak to Amendments Nos. 85 and 86.

I sympathise with local education authorities that hold open special educational places for pupils only to see those places remain empty. The local authority is financially committed and, at the same time, another child is prevented from benefiting from that place.

The Bill goes too far, in that it may encourage local education authorities not to make enough special needs places available in the first place. All too often in the past, we have heard of parents having to resort to the private sector in their desperation to find the right educational provision for their child. There is, of course, some wonderful provision in the private sector and it is frequently from the private sector that many successful specialist innovations are first introduced and highlighted. Some of the private educational establishments in this country are well known around the world for their high standards of achievement. But the private sector is not always the first choice for parents. For many parents their acceptance of fees is felt necessary only because of the absence of local authority provision. All too often the slowness of the bureaucratic machinery of local government forces parents to find suitable educational provision in the private sector.

Should the Bill become law as it is drafted, local education authorities will have no incentive to speed up their decision making or to make additional special needs provision. That will result in a Catch—22 situation whereby a concerned parent, while waiting for his child to be statemented or placed in a local authority school, finds a privately-funded place for his or her child and then discovers that the local education authority will make no provision in the public education sector because the child is already placed in the independent sector.

The amendment seeks to ensure that local authority places are available for those children who need them—my caveat, as always, is if that is appropriate but at the same time, local authorities need not hold open those places indefinitely.

In moving Amendment No. 84, I shall speak also to Amendment No. 85. Clause 9 exempts the LEA from naming the school or other institution which it recommends for the child's needs if the parents themselves have made suitable arrangements. That is fair enough, as far as it goes, but that parental choice should have to be recorded in the statement as an assurance to all concerned that the special educational needs of the child will be met and where they are to be met. The amendment therefore requires that parental choice be recorded in the statement, and that matter of record is important, especially if the situation has to be revisited. I beg to move Amendment No. 84.

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I entirely support the amendments tabled by my noble Friend. I had intended to address this subject under Clause 9 stand part, but I might as well do it now. These delays can be intolerable. Sometimes it can take two or three years to settle a child's provision properly in the state sector. If you have a child who is suffering like that and you have the ability to pay for a private school, you would have to be extremely hard-hearted not to, except that, so far as I understand it, we are presented with a situation, under Clause 9 in which, if your nerve breaks and you run for the private sector to give your kid a decent education a year or two earlier than he might otherwise, you lose all right to state support and have to go on paying for private education for ever because there is now no right to turn to the state.

While the process of appealing and deciding the statement is under way, parents ought to have the right to make provision for their child as they see fit. At the end of the process, when the tribunal has decided and when the thing is settled, if the parents then decide to go private, that is their decision and they take the consequences. However, I do not see why they and their child should be made to suffer because of the delays in the system

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Clause 9 seeks to ensure both fairness and clarity in the exercise of a duty placed upon LEAs to specify a school by name in part 4 of a statement of special educational needs. It allows authorities not to name a particular school they consider appropriate in case the child's parents have made suitable alternative arrangements—typically by paying for a place in an independent school. It avoids in these circumstances the LEA having to name a school in the child's statement and then having to keep open a place for him when they know that child will not be attending the school—a place which might otherwise be taken up by another child. The LEA would also no longer have to pay for an empty place, which is, of course, not an efficient use of its resources.

It would be unfair if a place that was unlikely to he taken up by a particular child was denied to another and this clause is designed to prevent that from happening. It is not our intention to allow LEAs to avoid naming a school in a statement in a significant number of cases, but if a parent has made suitable alternative arrangements, it is appropriate that no school should be named. Other than that, LEAs will continue to name schools where appropriate, or a type of school or education otherwise than at a school that has been arranged for a pupil. The clause will therefore enhance the exercise of parental choice by potentially opening up more places for children who need them and whose parents want them to attend. It will remain open to parents who have made alternative arrangements for their children to seek a placement at a maintained school later on if they wish.

Amendment No. 84 would undermine those intentions by requiring the name of a school or institution to be included in the statement in all cases. Amendment No. 85, like the previous one, would also serve to undermine the aims of Clause 9—which I set out clearly for the noble Lord, Lord Lucas—by requiring a school or other institution or arrangement to be named in a statement in cases where the parents have made their own arrangements. Acceptance of this amendment would make authorities liable to meet the cost of the provision arranged by parents, sometimes at independent schools, even though the authority could arrange perfectly suitable alternative provision at a lower cost.

Authorities are not currently liable to contribute towards the cost of educating a child in those circumstances. We think that that is a sensible use of resources which must also be shared with other young people with special educational needs.

Amendment No. 86 seems to us to be unnecessary. The LEA is already required to ensure that the educational provision specified in the statement is being made available at one of its own schools or at one of the parents' choice, unless the child's parents have made suitable alternative arrangements for the child.

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. That could deny a place to another very deserving child. In the meantime, the LEA in any case needs to be satisfied that the educational provision of the parents' choice of school is suitable, including whether it is appropriate for the child's needs as set out in the statement. I hope therefore that the noble Baroness will consider these amendments and that the noble Lord can see why Clause 9 needs to be part of the Bill.

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It has been a useful debate and I am not entirely convinced by the Minister's response, although I understand the arguments for flexibility. If my first amendment provides something that is much too inflexible, clearly I need to think about it again. I do not think the noble Baroness was correct in her interpretation of my Amendment No. 86. The noble Baroness suggested that somehow or other I was advocating that in the event of the example I gave the local authority would be left picking up the bill for the private education. That is certainly not what I meant.

I was referring to parents who want a place in mainstream education for their child and who have waited so long that in absolute desperation they have scraped the money together to send them privately; but nevertheless want to get them back into mainstream education. Because they have made provision for their child, the LEA wipes its hands of them. The amendment simply says that the LEA should continue to have an obligation; not that they should meet the fees of the private school.

A misunderstanding on Amendment No. 86 may well mean that the wording leaves something to be desired. However, I am not a professional in these matters.

I heard what the Minister said on Amendment No. 85. Again, the really inoffensive objective on my part was that there should be a record of the parents' preference in the statement. But I shall have to read more carefully what the Minister said on that amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[ Amendments Nos. 85 and 86 not moved.]

Clause 9 agreed to.

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This may be a convenient moment for the Committee to adjourn until tomorrow at 3.30 p.m.

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The Committee stands adjourned until Tuesday, 30th January at 3.30 p.m.

The Committee adjourned at four minutes past eight o'clock.