Official Report Of The Grand Committee On The Special Educational Needs And Disability Bill
Monday, 29th January 2001.
The Committee met at half past three of the clock.
[The Deputy Chairman of Committees (Lord Brougham & Vaux) in the Chair.]
The Deputy Chairman of Committees (Lord Brougham & Vaux)
Before we start the proceedings, I remind the Committee of the special Division procedures which were announced on the first day and which are available in Hansard.
Baroness Darcy de Knayth
moved Amendment No. 32:
After Clause 1, insert the following new clause—
Advice On Special Educational Needs
(" . At the end of paragraph 2(2) of Schedule 26 to the 1996 Act insert "on the nature of a child's special educational needs and on the type and the amount of special educational provision required to meet them."").
The noble Baroness said: In moving Amendment No. 32, I shall speak also to Amendments Nos. 33, 34 and 37. They are all aimed at improving parents' chances of securing the best possible educational provision for their child with a statement of special educational need.
The amendments look large and perhaps complex but they are, basically, tweaking the existing mechanism, which is often very much more complicated than replacing the machine itself. I shall try to be brief but please bear with me because I need to take them one by one. They are a suggestion of IPSEA, which is the Independent Panel of Special Education Advice. I declare that I am a member of that organisation but on paper only; I am certainly not a panel member, as I appear to have said in Committee on 23rd January at col. CWH 4. Panel members are involved daily in advising, giving evidence and helping parents through the maze of special education law. They speak, therefore, from first-hand experience rather than from anecdotal evidence.
I should record my gratitude to the Clerk of Public Bills for the huge amount of help I have had in getting these amendments right. Some involve regulations, which we cannot amend, but which point out where the problem is. If Members of the Committee agree, I shall not go into the detail of the amendments because, even if I did not confuse everyone else, I would almost certainly confuse myself. I prefer to concentrate on what they seek to achieve. All the issues have been discussed with Ministers and the department over a period of time so there are no surprises. However, I hope that the Minister will agree to take them away and consider them and perhaps cone back with amendments of her own. In addition, if there are problems, perhaps she would be willing to discuss them with me outwith the Committee.
I turn to Amendment No. 32. Its purpose is to require LEAs to seek professional advice on both the type and the amount of provision required to meet a child's special educational needs. While professionals do not decide upon the amount of provision to be specified in a statement, which is the LEA's duty, it is important that the decisions are made on the basis of the professional advice which is available to parents. At present, some LEA officers and indeed health authority and trust managers, instruct professionals not to include their opinion on provision—and specifically the amount of provision required —in their assessment reports.
Many professionals are unsure of their duties in that respect. Therefore, if Amendment No. 32 were accepted, it would ensure that LEAs have a legal duty to seek advice, not just on the child's needs, but also on the type and the amount of provision required to meet them. The benefit will be a more informed and more open decision-making process, ultimately reducing parental disagreement and the need for recourse to the tribunal. In the interests of clarity, it would be useful if they were backed up by changes in the SEN regulations 1994. Again, perhaps I can discuss that outwith the Chamber.
I turn to Amendment No. 33, whose purpose is to require LEAs to issue a new statement following a fresh assessment of a child who already has a statement. The problem is that, as the law is written, parents are only entitled to express a preference on their child's school on the issuing of the first statement. This was probably a drafting; it can never have been the intention when the law was written. I shall explain the situation briefly and, I hope, simplify it.
The Education Act 1980 gave all parents the right to express a preference for their child's school. Parents named the school they wanted the child to attend and LEAs had a duty to comply, unless there were specific reasons why the school was not suitable. The 1981 Act removed the right to express a preference for a school from the parents of all statemented children. It shifted the burden of proof. Parents had to prove why and how the school they wanted was appropriate for their child, rather than LEAs having to prove why it was not—a far more difficult task for a parent.
The 1993 Act reinstated the right of parents of statemented children to express a preference for a school but only following the issuing of their child's first statement. In fact, the parents of children who were very young and assessed before they ever went to school have never had the legal right to express a preference. Parents of children with statements continue to be denied the right in law to express a preference when, following subsequent assessment of their child, the existing statement is amended. The amendment procedure under Schedule 27(10) denies the parent the right to express a preference for a school or to request a meeting with an officer to discuss the changes to be made to the existing statement.
The aim of the amendment is to cause the LEAs to issue a new statement, which would supersede the first one as the legal statement, following every assessment of a child's special educational needs. That would give the parents of statemented children the right to express a preference for a school following every statutory assessment of their child.
The aim of Amendment No. 37 is to end the confusion that the existing statute causes to many LEAs and parents. It would separate in law the right of appeal following reassessment and the right of appeal following amendment. It would not introduce any new appeal rights but it would clear the two separate procedures that we hope will operate in future. First and subsequent assessments would be dealt with under Section 326, while Schedule 27 would cover only amended statements.
The aim of Amendment No. 34 is to introduce a new right to request a meeting with an officer and to express a preference for a school whenever a statement is amended under Section 27(10). Schedule 27(10) does not currently allow parents the right to express a preference for a school. There is some misunderstanding of the law at present and tribunals have been tightening up on this, but my interpretation—and that of IPSEA and the Special Educational Needs Tribunal—is that they are not allowed to express a preference. The opportunity presents itself to put that right now and it is important that we take it.
The amendment would direct LEAs to comply with parental preference for a school whenever a child's statement was amended, for whatever reason. Amendments are most commonly made without assessment, or at the point of nursery-primary or primary-secondary transfer.
I apologise for speaking at such length on amendments that are mainly small tweakings to put right things that were never intended. I hope that they will clarify the legal situation by separating the assessment and amending procedures. These are small tweakings, but very important for the children involved. I hope for an encouraging reply from the Minister. I beg to move.
I rise to support briefly the amendments proposed by my noble friend, Baroness Darcy de Knayth. The noble Baroness has explained their aim much better than I could have done. They would ensure that the parental rights to be heard, to deal with a well briefed local authority that had some sense of urgency and to appeal to a tribunal were not put at risk by technicalities.The principles of the noble Baroness's case are not open to serious challenge. I cannot imagine that the restrictions she has explained were ever intended. As she has pointed out, we are not seeking fresh statements where the amended statements will do perfectly well, but the simple and economical procedure of amending rather than re-doing must not remove basic rights. I trust the Minister will be able to set our minds at rest by offering her own answers to these very real problems.
I, too, support the noble Baroness, Lady Darcy de Knayth. My amendment is complementary to hers and would ensure that all was done in good time. School medics or school nurses are often the first people, after parents—although sometimes instead of parents—who see signs of physical or special needs. As qualified people, they should be able to insist on a statement within a reasonable time scale. My aim is to provoke a response on the possibility of specifying that in the Bill.As many of us said at Second Reading, we are all aware of the importance of a child's special educational needs being addressed as early as possible. I have tabled the amendment to ensure early intervention. After a child's parents, a school medical officer or a school nurse is best placed to see signs of need for these children. Their particular qualifications and professional opinion should carry weight when a request for a child to be statemented is made. When a request to the local education authority for a statement is supported by a professional of the kind I have described, a statement should be forthcoming within a reasonably short timescale. All too often there are delays in obtaining a statement for a child. Special educational needs identified by professionals in primary schools are not always picked up before the child is ready to transfer to secondary school. As we all know, too often when the child come to secondary school he may have several terms when everybody goes back to first base to note what his special needs are. Having defined what the child's needs are, a third placement may be needed at a different school from the secondary school. I am especially concerned about pupils who make this transfer from primary to secondary. A number of studies have discovered this weak link in the system when children move from primary school. Sometimes there may be a reluctance on the part of the primary school to do this work; it is then left to the secondary school. I believe that it is in the interests of the child for a statement to be made, prior, if at all possible, to any transfer where a school medical officer or a school nurse thinks that a child has special educational needs. I am suggesting the new clause. Part of me believes that we could go as far as requiring local educational authorities to provide a statement for a child within a particular timescale. I believe that I can pre-empt the response of the noble Baroness. There needs to be some flexibility where the timescale cannot be met. I should like to think that there would be a presumption in favour of a six-month timescale. Six months is a long time when a child is waiting to have a definitive statement on his special needs. I support the amendment moved by the noble Baroness.
I, too, rise to support this group of amendments. It seems to me they make very reasonable demands on the LEAs, make for clarification and would help both the parents and the children themselves. I think they are very reasonable and I hope that the Minister will be able to give a sympathetic response to them.
I support Amendment No. 91ZA. When we last met I spoke about the long delays occurring within certain local authorities in getting children statemented— sometimes on the excuse that there are not enough psychologists. I was director of school which has many children who are not statemented but—my goodness—they have a problem. The local authorities drag their feet on getting them statemented because they do not want to have to meet the bill for special education.
Baroness Sharp of Guildford
I support the noble Baroness, Lady Darcy de Knayth, and the noble Baroness, Lady Blatch. From the arguments put forward by both the noble Baroness, Lady Darcy de Knayth, and the noble Lord, Lord Rix, it does not seem likely that in the 1993 Act the government sought deliberately to curtail parental rights in this way. It seems a plausible argument and the proposed amendment extremely sensible.I support Amendments Nos. 32 and 91ZA. One of the problems which arises time and again is that of local education authorities dragging their feet in terms of statements, perhaps seeking professional advice but not including in the statement a specification of the precise amount and duration. Amendments Nos. 43 and 44 pick up those issues. It is a real problem and one that we need to address.
I, too, support those two particular amendments. Amendment No. 32 appeals to me particularly because one of the features of the years of local authorities trying to control their SEN budgets has been that they have said to educational psychologists, "If you produce a report that we can't use in whatever way we want, we won't employ you again." Many educational psychologists now produce reports that are so bland and meaningless that the local authority can do as it wants with the child. That is a perversion of professional ethics that we should not allow to continue. Educational psychologists should be independent and produce meaningful reports. If we cannot do that by giving them some status as a profession with a body of their own to protect their ethics, we should start to do it in the way proposed in Amendment No. 32, by making sure that what they produce is of use to parents and their advisers as well as suiting the requirements of local authorities to control costs. It is important that we use the Bill to make some progress on that matter in some way.Turning to Amendment No. 91ZA, I too see the need for speeding up the procedure. It is an unenviable position in which local authorities find themselves. They are told by Mr. Blunkett that they have to delegate 85 per cent of their expenditure. They have 5 per cent plus on SEN, 5 per cent plus on transport and a little scrap left over for their central costs. That is a very hard regime and they have no flexibility to find more money to spend on SEN, so much of their effort goes into controlling it. That is not the way in which we should write the legislation. The local authorities' duties should be clear and we should deal with the resulting cost pressures through the Treasury or in other ways.
Lord Davies of Oldham
I begin by saying that we have some sympathy with the intentions behind the amendment. I have some constructive words to offer to the noble Baroness, Lady Darcy de Knayth, with a reservation about Amendment No. 32 that I shall talk about in a moment. I have greater difficulties with Amendment No. 91ZA that I shall need to present to the Committee and I apologise for the length of the arguments.We consider that Amendment No 32 is unnecessary. The Education (Special Educational Needs) Regulations 1994 already require that the advice provided by professionals for statutory assessments should relate to the educational, medical, psychological or other features relevant to a child's educational needs; how those features could affect his educational needs; and, the provision that is appropriate in the light of those features. To go further and require those giving advice to specify the particular amount of provision would be inappropriate. That is a matter for the LEA which must consider the advice it receives from various sources in the round and determine the provision to be specified in a child's statement after taking that advice. It is, after all, always open to the LEA to hack to those giving advice if it needs more details. I hope that the noble Baroness, Lady Darcy de Knayth, will consider withdrawing the amendment. Amendments Nos. 33 and 34 seek to secure a more consistent way for parents of children with statements to express a preference for a school of their choice and to have a meeting with the LEA where their child's statement will be changed following a statutory reassessment or an annual review. Currently, parents only have that right the first time the LEA carries out a statutory assessment and issues a proposed statement. It is true that where the LEA carries out a subsequent statutory assessment and in the light of that assessment wishes to change the existing statement, or where it wishes to change a statement following an annual review, it must by law amend it. As part of the process of amendment, parents do not have a formal legal right to express a preference for a particular school or to require the LEA to arrange a meeting with them to discuss the proposed amendments. But the LEA is obliged to give parents formal notice of the proposals for amending the child's statement and to allow them 15 days to make appropriate representations. It is quite usual for parents, as part of their representations, to express a preference for a particular school and, indeed, to seek a meeting. Many LEAs comply and many offer a meeting when they send the formal notice to the parents. Under paragraph 8 of Schedule 27 to the 1996 Act, parents may also once a year ask the LEA to specify a different school in their child's statement. Ultimately if, having taken account of parents' representations, the LEA amends the statement and the parents disagree with the amended statement, they have, of course, the right to appeal to the SEN tribunal in relation to the description of the child's needs and the provision as well as the named school. Amendment No. 37 appears to have no material effect if taken alone. It is designed to ensure that parents can appeal against the wider contents of an amended statement, rather than the amendments that have been made following a reassessment or review. As I have just explained, they can do that already. The amendment would therefore appear to be unnecessary. However, we propose to consider Amendments Nos. 33 and 34 to see if there are ways of achieving greater consistency and therefore any possible effect such amendments may have in relation to Amendment No. 37. I shall ask the noble Baroness to withdraw Amendment No. 32. Amendment No. 91ZA would require LEAs to make a statement for every child under five whom a health authority or NHS trust believed had, or probably had, special educational needs. This would not be appropriate. It is for the LEA to decide, in the light of appropriate advice, whether the child has special educational needs and, if so, what action should be taken. Under Section 332 of the Education Act 1996, where a health authority or NHS trust are of the opinion that a child under the age of five has, or probably has, special educational needs, they must inform the child's parent. After giving the parent the opportunity to discuss that opinion with an officer of the authority or trust, they must bring it to the attention of the local education authority. It is then for the local education authority to decide what action to take. It may decide that the child's educational needs can be met without an assessment or a statement. A child attending a nursery school or early education setting may have his or her needs met from within the resources of the school or setting without any need for further intervention by the LEA. This may be by way of an individualised programme tailored to their particular learning needs, access to some specialist equipment or perhaps some advice on a one-off or occasional basis from the LEA support services. In many such cases, the local health professionals will already be working with the special educational needs co-ordinators to assess any underlying physical or sensory difficulties that may be causing problems and providing advice on the programmes or strategies that could be used to help. In many cases where a child under five and over two is referred by a health authority to an LEA, he or she will have demonstrated a significant cause for concern. These children may have severe and complex needs that are likely to be resolved through a statutory assessment and a statement to ensure, for example, access to a particular service such as home-based teaching or a developmental play programme and to continuous monitoring and review. In those cases the LEA must complete the process within an overall period of around six months. Again, if the health services have been involved all along, the time taken to conduct such an assessment will be reduced since a lot of the information required will already be available. Where children under two are referred to the LEA, it is probable that their parents or the child health services will have found that they have a particular condition or major health problem very early on. In some areas the Sure Start programme will have not only identified the child but also co-ordinated access to relevant services. When they decide they need to carry out an assessment, they will have a great deal of information already. Children under two need not follow the normal statutory processes for assessment, shortening the time taken for a decision. If it is decided, following an assessment, that a statement is needed, it can usually be made very quickly, well inside six months. The current SEN code of practice advises that, where a health authority refers a child to an LEA, there should be agreed procedures for acting speedily to ascertain whether the child's needs require specific intervention from the LEA. The draft revised SEN code of practice also emphasises the importance of early intervention and joint working between local education authorities and health and social services to meet the needs of children with SEN as quickly as possible. We are developing guidance for health and social service professionals to complement the revised code of practice to promote closer co-ordination and good practice in this important area. We are also strengthening the arrangements for identifying children with SEN as early as possible. During Second Reading, the noble Baroness, Lady Blatch, asked what in the Bill will improve early identification and intervention for children with a range of conditions such as autism, sensory impairment and dyslexia? Other noble Lords emphasised the importance of early intervention. I wholeheartedly agree with the importance of early intervention and I shall say a little about what we are doing to encourage it. However, in response to the noble Baroness's question, this Bill is not the vehicle by which to achieve better early identification and intervention. Legislative provisions under the 1996 Act already set out arrangements LEAs should follow for the assessment of SEN for children over two and empowers them to make their own arrangements for children under two. The Act also places a duty on health authorities and NHS trusts to inform LEAs where they believe a child under five may have SEN. But legislation on its own cannot ensure efficient early identification and intervention. We are encouraging that through a range of key initiatives. Programmes such as Sure Start, to which I have already made reference, Quality Protects and early excellence centres all promote multi-agency early intervention. Early years providers' ability to identify SEN and respond appropriately is being developed through conditions on government funding of early education, stipulation on early years development and childcare partnerships, and through the Foundation Stage Curriculum introduced in September 2000. Approaching 13.5 million for early years training and development, including training to identify SEN, is being provided this year. And QCA research has shown that almost three-quarters of the local baseline assessment schemes are being used effectively as warning indicators of possible impairments. In the short term, we aim to disseminate good practice in this area to bring all schemes up to the standards of the best. In the longer term, the introduction of a national baseline scheme in 2002–03 presents an opportunity to improve that figure since it will incorporate the features of the best local schemes. Screening for specific conditions can have a role to play. At the close of the Second Reading debate, mention was made of the Department of Health's neonatal hearing screening programme. Checklists for autism in toddlers for use by health visitors enhances the possibility of early detection of autistic spectrum disorders. However, early screening is not, of course, the complete answer. The difficulties of children with Asperger's syndrome, for instance, may only become fully apparent once they are in a school setting and preschool screening for dyslexia would not be reliable, producing a large number of false positives. We believe the improvements we are making to identification of the full range of children's special educational needs—where they present singly or in combination and whenever they occur in a child's educational career—will provide the surest way of identifying those needs. I return, therefore, to Amendment No. 91ZA, which would require a statement to be issued for every child referred to a local education authority by a health authority or NHS trust. That is not necessary since, in a number of cases, appropriate help can be provided without a statement. The current arrangements allow for action to be taken quickly where assessments are necessary and fast-track arrangements are possible for children under the age of two. We have taken steps to ensure that children with SEN are identified as early as possible and to promote closer co-operation between local education and health authorities so that children's needs are met at the earliest opportunity. In the light of what I have said—and I apologise for having spoken at such length—I hope that the noble Baroness, Lady Blatch, will consider not moving her amendment.
Baroness Darcy de Knayth
Perhaps the noble Baroness, Lady Blatch, would like to speak before I withdraw my amendment.
If I speak now, it will save coming back to my amendment later. I am grateful to the noble Lord because he has gone into great detail and much of what he has describes good practice—something that we would like to see dispensed throughout the country. However, I need to read his response more carefully because I was quite concerned about some of what was said.The input behind my amendment is that there should be a presumption of a speedy response where professionals are concerned about the educational needs of a child being met. In addition, I made more than a passing reference to the need for that work to be done as early as possible and certainly before a child leaves primary school and goes to secondary school. It does beg a lot of questions when a child in the early stages of secondary school requires a statement. There have to be some serious questions asked about was happening during all the years prior to the transfer to secondary school. At one stage the Minister said— perhaps in a slightly different context—that this is not the Bill to improve the system. I was always proud that the 1993 and 1996 Bills went through the House with a great deal of all-party support and I regard this Bill as an opportunity to build on and to improve them where we possibly can. This Bill gives us an opportunity to look at some of the weak links in the system—one of those is most certainly the transfer of children with special educational needs from primary into secondary school—as well as the speeding up of statements for children. I think I heard the Minister say that, where a health professional spots a problem with a child who may require special educational needs and goes to the local authority, it is for the local authority to make that decision. I want to pose a specific question to the Minister: where the health professional comes across a child before the age of five and over the age of two and considers the child to require special provision, for whatever reason, then if the LEA disagrees and decides not to carry out an assessment, where does that leave the parent? Indeed, where does it leave the needs of the child? There is something rather unnerving in that because the noble Lord said something else which seems to conflict; namely, that where a health professional picks up a problem, usually one really does exist. As the chairman of a playschool for some eight years, prior to coming into this House, I know that those problems can often be picked up accidentally. I recall a child who produced what was thought to be scribbling and doodling but which turned out to be most accurate mirror-writing, though in a rather shaky hand. It transpired that that child was seeing and writing in a way that required a great deal of correction. That was picked up purely by informal, unprofessional observation at a playschool. We were then able to call in the professionals, who made representations to the LEA. It is a question of where the rights of the parents lie in a situation where the problem is picked up by a third party professional and the LEA decides not to carry it through.
Lord Morris of Manchester
Before my good and noble friend Lady Darcy de Knayth rises to respond to the Minister, I, too, congratulate him on
Lord Morris of Manchester
Before my good friend the noble Baroness, Lady Darcy de Knayth, responds to the Minister, I too thank him for his reply.My noble friend is well aware of my wide-ranging contacts with the organisations of and for disabled people and their families. From these contacts, I know that the strongest and most persistent criticism of the parents of children with special educational needs is that, the wider the discretion allowed, the longer the delays and the wider the diversity of local authority practices. One important objective of the amendment of the noble Baroness's amendments is to reduce that diversity by levelling up on the basis of the best existing practice. I hope very much that the Minister will reflect carefully on the arguments the noble Baroness put forward this afternoon and will respond positively to her on Report. If the problem is one of finding more felicitous drafting, that is not insoluble. I am sure my noble friend will want to do all he can on Report to ensure that we leave these sections of the Bill in a form that will give pleasure to the parents of children with special educational needs, many of whom are at present dismayed by unacceptable delays in today's wide diversity of local authority practices.
I wonder whether the Minister could clarify something. He has told us what the local authority is supposed to be doing and, with credulity, I believe that some local authorities are not doing so. Am I right to believe that Ofsted is now inspecting local education authorities? If so, will they inspect these issues?
Baroness Sharp of Guildford
Before the noble Baroness, Lady Darcy de Knayth, replies, perhaps I may say that the Minister seems to be wearing rose-coloured spectacles. Those of us who have been involved as governors of schools feel that the situation on the ground very seldom operates in the way described, partly because there is such a shortage of specialist advisers.The noble Lord, Lord Morris, said that the strongest and most persistent criticism related to the diversity of LEA practice. I find that the strongest and most persistent criticism is about the time taken and the degree of foot dragging by local education authorities when it is clear to the professionals involved that it would be useful to have a statement. In introducing Amendment No. 32, the noble Baroness, Lady Darcy de Knayth, argued that when the professionals are involved you do not get a statement which specifies with any precision the amount of help required. As the noble Lord, Lord Lucas, mentioned, one reason is that the local education authorities are currently very squeezed of resources. We have every sympathy for them. However, the fact is that the system does not operate on the ground in the way outlined.
Baroness Darcy de Knayth
I thank all noble Lords who have taken part in this debate. The noble Lord, Lord Rix, managed to sum up in 10 words what I took about 10 minutes to explain. I thank the noble Baroness, Lady Blatch, for her support. As the "mother" of the 1993 and 1996 Acts, that means a great deal. I share her concern. I hoped that the government amendment about the responsible body might cover her amendment. I, too, have an amendment to increase the pressure on the timescale, but we shall consider that later.The noble Baroness, Lady David, the noble Baroness, Lady Sharp, and the noble Lord, Lord Lucas, gave great support for Amendment No 32. This amendment found the least favour with the Minister. Surely it is absolutely crucial. There are always arguments, and people go to tribunals, on the provision aspect of the statement and it is more an more important. In the Bill aids and services are excluded for school children—they are given to the post-16s—on the grounds that those aids and services need not be included under the DDA because the children with statements and special educational needs are safeguarded by the security of their statements. It is absolutely crucial therefore that statements contain very specific provisions. Surely, if there is a professional report, that report ought to be included. I am not asking the professional to write the statement; merely to make the report available and the LEAs to pay attention to it. As I said when I introduced the amendment, at the moment some of them instruct the professionals not to include the opinion on provision. I thank the Minister for his detailed and thoughtful reply. I was gloomy about Amendment No. 32 and ask if he is willing to discuss it further outwith the Chamber at some point. I see he is nodding, for which I thank him. I was also rather gloomy about Amendments Nos. 32, 34 and 37. I believe I understood him to say that he would take them away and look at them. Again, I am grateful for that nod because I had been rather gloomy when I heard him pray in aid Schedule 27(8). That gives some rights but is not nearly as strong nor as satisfactory a process. Amendment No. 37 appears to be almost pointless but was made necessary by Amendment No. 34. We knocked out something in Amendment No. 33 which Amendment No. 34 would need. So I was putting back the trigger. Anyway, I am sure that the department will have a much better way of drafting it and will not need anything like Amendment No. 37, and for that I am hugely grateful. If the Minister would be prepared to discuss Amendment No. 32 further, I would be doubly grateful. In the mean time I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendments Nos. 33 and 34 not moved.]
moved Amendment No. 35:
After Clause 1, insert the following new clause?
Special Educational Needs Tribunal: Establishment Of Conciliation Service
(" . In the 1996 Act, insert the following section"
" Conciliation service.
333A. The Tribunal may establish and maintain a conciliation service."").
The noble Lord said: I am not sure why these amendments have been grouped together; they are nothing to do with each other. In relation to the next group, I shall not speak to Amendment No. 96; it is on a different part of the Bill entirely, let alone a different subject.
Taking Amendment No. 35 first; this is merely to sound out the Government on the possibility of the tribunal being allowed to encourage conciliation. It is a practice which is catching on quite satisfactorily elsewhere and it seems to me that the tribunal ought to be looking in that direction.
Amendment No. 38 deals with a minor difficulty which causes considerable distress in some individual cases. Where a parent is appealing against an assessment, the local authority normally does not have the right to go ahead with that assessment until the appeal has been determined. However, where there is an amendment to an assessment, the local authority can go ahead with that amendment even though there is an appeal pending. Several local authorities are using that provision to chuck children out of one school into a school of the authority's choosing, which can result in a child's education being severely disrupted for a period of a year or more while the appeal is taking place, which eventually puts the child back into the school where he was originally. The principle in the Act that the local authority should not be able to go against the parents' wishes until the appeal is determined is one we should follow in all cases rather than just most.
Baroness Darcy de Knayth
I would like to support this amendment. As the noble Lord says, it avoids double disruption to a child's schooling.
Lord Davies of Oldham
Let me begin by saying how much I appreciate the intention that lies behind Amendment No. 35, in the name of the noble Lord, Lord Lucas, to which he has just spoken, which is to reduce the number of cases which have to be taken to the SEN tribunal. We would all wish to keep those to as low a level as possible.However, we do not believe that the SEN tribunal is the appropriate body to run conciliation arrangements for parents and LEAs who are in dispute over the special educational needs provision for a child. It has always been clear that the tribunal's role is to determine parents' appeals against the decisions of LEAs about children's special educational needs. If the tribunal were to act as a conciliator prior to an appeal, this might be seen as prejudicing a parent's absolute right to have his or her appeal heard. The tribunal might be seen as trying to encourage them to drop their appeal, which is, after all, one of the purposes of any conciliation exercise. Mixing the legal role of the tribunal with the less defined and more open-ended role of a conciliator might risk undermining the tribunal's reputation for rigour and impartiality. The amendment is also unnecessary as it duplicates to an extent provision elsewhere in this Bill. Clause 3 of this Bill provides that LEAs must make arrangements for the avoidance and resolution of disputes. The arrangements must provide for independent persons to facilitate the avoidance and resolution of disputes. The amendment would mean a substantial overlap between the services provided by the tribunal as a court of appeal and those provided by the LEA and the independent facilitators and conciliators. This issue of unnecessary duplication may also arise in respect of disability cases heard by the tribunal, when it becomes the SEN and disability tribunal and the provisions of the Bill dealing with disability discrimination come into effect. Under the provisions of Clause 36 of the Bill the Disability Rights Commission will be given the power to make arrangements for the provision of conciliation services. When those provisions come into force the amendment would mean that there might be three sets of conciliation services available in respect of a dispute arising from the same set of facts. It may be that the noble Lord is concerned about the independence and impartiality of the services to be provided under Clause 3 as these will be arranged by LEAs. I restate the requirement of the Bill at. Clause 3(3) that the arrangements
Turning to Amendment No. 38, LEAs have a statutory duty to make arrangements to meet a child's special educational needs as set out in his or her statement, unless they cease to maintain the statement because, for example, the child no longer has special educational needs that warrant additional or different provision from that provided by their school from within its own resources. We are providing in this Bill, in such cases. for the child's statement to be maintained until the tribunal has come to a decision. This will ensure that where parents disagree that their child no longer needs the protection of a statement, they can be assured that the statement and the additional support provided for their child under the statement will be maintained until their arguments are heard by the tribunal and a decision is reached. This amendment seeks to secure the same treatment where the LEA proposes to amend the child's statement. But a decision of an LEA to amend a child's statement because it has come to a professional judgment that it needs to be changed to reflect the current needs of the child is of a entirely different order. It would not be appropriate in those circumstances for the provision to be put on hold to allow an appeal from the parents to be heard by the tribunal and a decision reached. If an LEA amends a child's statement before the tribunal judgment, the child will still receive the provision that the LEA considers appropriate for his or her needs, although it may not necessarily be the provision the parents want. If the tribunal later finds in the parents favour, the child will then receive the provision the parents consider suitable for meeting their child's needs. The amendment would not take account of situations where a number of amendments to the statement are being suggested and the parents agree with some but not others. In such cases, the parents would have to wait for the amendments with which they agree to be implemented until after the tribunal had reached its final decision. Under the present arrangements the child would benefit straight away. Having heard those reassurances, I hope that the noble Lord, Lord Lucas, will feel able to withdraw the amendment."must provide for the appointment of independent persons".
I am grateful for the Minister's reply on Amendment No. 35. It is complete, accurate and satisfactory. I do not believe that he addressed Amendment No. 38 at all. I understand that the problem of amendments is a complicated one, and I have not sought in my drafting to do more at this stage than raise the issue. The use which is being made of this power and the disruption which is being caused to children's education are not issues we should let pass by as lightly as the noble Lord appears to wish to do. I hope that he and his officials have listened to the problems which I have brought to his notice; they will have come across them in other contexts.Perhaps there is some way of limiting what can be done under the heading of amendment. Perhaps we can consider other ways of approaching the matter to avoid minor amendments which recommend reducing 20 hours to 18 hours of support, or something of that nature, which do not cause a great deal of disruption to the child's education. However, where this procedure is being used in a way which does cause a great deal of disruption to the child's education, we should go back to the protection for the parents and child. In some cases statements are effectively being ended by amendment and that should be subject to the same controls as ending the statement.
Lord Beaumont of Whitley
Before the noble Lord, Lord Lucas, decides whether to withdraw his amendment, would it not be possible either for the Government or the noble Lord to meet the case which the Minister talked about where there were a number of amendments and only one or two parents objected? It would not be difficult to draft an amendment to meet these particular cases and to allow that to happen. I wonder whether the noble Lord, Lord Lucas, and the Minister would consider that way forward.
I would never dream of saying that it was not difficult to draft an amendment; I have rarely succeeded in doing so satisfactorily. I am sure the Minister has listened to what has been said. I am equally sure that this is a matter to which we shall return on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 36:
After Clause 1, insert the following new clause—
Access To Suitable Education For Child With Learning Difficulty
(" . In section 312(1) of the 1996 Act (definitions), after "difficulty" insert ", or a difficulty in accessing education suitable for his abilities,".").
The noble Lord said: The amendment reminds us that the children about whom we have been talking are not the only ones with special needs. There are a large number of children in this country whose special needs arise because they have particular abilities which schools are generally not in a position to encourage. They may be exceptionally intelligent; they may have exceptional talent as musicians or artists, in sports or other ways. Many schools are not in a position to give the child the attention and support which would be required for the child to develop fully those abilities.
It is an old chestnut and I do not intend to waste the Committee's time on it. However, we should remember that differing needs arise and we should support those children with particular provision just as we wish to support children whose needs arise from other causes. I beg to move.
I welcome the opportunity to have the matter discussed. We—and I include the Government—aim for the learning difficulties of any child which are over and above the norm to be appropriately addressed. They should be given equal consideration. If over time, we want to reduce the number of people who require statements, then the more seriously the aims of the amendment are met, the better.A combination of early intervention and taking seriously all learning difficulties at an early age will reduce the later needs of children whose difficulties are such that they require a statement. I therefore welcome the amendment. It may not be easy to draft an amendment to meet those difficulties, but it is important to put on record reassurances about meeting the needs of all children, particularly those with learning difficulties, who fall short of needing a statement.
The Minister of State, Department for Education and Employment (Baroness Blackstone)
I am sorry that Amendment No. 96 is grouped with Amendment No. 36. The noble Lord, Lord Lucas, does not consider them in any way related. We thought that they were. The fact that Amendment No. 96 applies to a different part of the Bill does not mean that it cannot be grouped with Amendment No. 36, although I accept entirely the noble Lord's right to de-group the amendments.Amendment No. 36 would add to the definitions of "special educational needs" in section 312 of the 1996 Act. Concerns have been expressed about how the definitions will work together between this and the second part of the Bill. I hope that I can provide the reassurance sought by the noble Lord, Lord Lucas, and the noble Baroness, Lady Blatch. Section 312 of the 1996 Act provides that children are classed as having learning difficulties if they have a significantly greater difficulty in learning than the majority of children of the same age or have a disability that prevents or hinders them from making use of educational facilities of a kind provided for children of the same age. The test for children under five years is whether this would be true of them once they reached five, if no special educational provision were made. The current statutory arrangements in the 1996 Act, supported by the guidance given to LEAs, schools and others in the SEN code of practice, already provide for children's needs to be addressed—whether solely through school-based provision or with additional resources and support from the LEA by way of a statement. The current definition already seems to achieve what the noble Lord seeks in Amendment No. 36. I do not dispute what he is seeking in any way, but the definition is clear in the Act. The amendment could also be read as extending the SEN definition to cover children who are not provided with work that specifically meets their abilities at any time. The problem is one of wording. That interpretation would extend the definition of SEN to all children when they are not provided with lessons or resources commensurate with their ability. This would mean that every child would be likely to fall within Part IV at some stage in their school career, as there may be times, especially in whole-class, mixed-ability teaching, when the lesson is not totally differentiated but is appropriate in that particular context. No doubt as parents we could all cite examples of when what was being taught did not seem to be 100 per cent appropriate to the needs of our children at that precise time. That seems almost inevitable. Amendment No. 36 refers to,
Perhaps the noble Lord, Lord Lucas, has in mind an example of a very bright child who has some specific learning difficulties in, say, literacy that threaten his access to the rest of the curriculum. Such a child would have learning difficulties under the present definitions of special educational needs and would receive provision for those needs through the SEN framework, perhaps by way of a differentiated curriculum and some targeted multi-sensory work in reading and spelling through the national literacy strategy from the school's resources without the need for a statement. To give another example, a visually impaired child at a mainstream school might need advice from a qualified teacher of the visually impaired, low-vision aids and specific IT equipment, including a computer, in order to access education suitable to his abilities. In that case, he would receive help through the SEN framework via a statement of special educational needs. Both children would fall within the existing definition of SEN in the 1996 Act. I hope that illustrates why Amendment No. 36 is unnecessary. In the light of the reassurance I have given and that explanation, I hope that the noble Lord feels able to withdraw this amendment."a difficulty in accessing education suitable for his abilities".
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendments Nos. 37 to 40 not moved.
Lord Pearson of Rannoch
moved Amendment No. 41:
After Clause 1, insert the following new clause"
(" . In the 1966 Act, after section 316, insert—"
316AA. In the exercise of any functions under this Part, provision is not to be considered as giving rise to disproportionate expenditure only because that provision is more expensive than comparable provision."").
The noble Lord said: I regret to say that Amendment No. 41 was decoupled in our proceedings on 23rd January from Amendment No. 21, with which it was erroneously grouped. If I may, I will speak to Amendment No. 41 now. I should start by apologising for a typographical error in its wording: the 1966 Act should of course refer to the 1996 Act
I can be very brief. This amendment merely seeks to pick up on our amendments last year to the Learning and Skills Bill and to replicate what became Section 2(4) of the Learning and Skills Act 2000 into this Bill. It may be that this provision is already in the Bill, in which case I apologise to the Committee for not having been able to find it. If it is not, I submit that it should be, especially given the words of the Minister at col. 778 on 18th July last, when we considered Commons amendments to the Learnings and Skills Bill, and when she said that the new Section 2(4) of that Bill would apply to provision for both sixth forms and for students with learning difficulties and disabilities. This amendment merely assumes that the same policy will apply to schools.
The effect of this amendment would be to prevent an LEA from refusing to fund either a mainstream place or a place at a special school merely because that provision appeared more expensive than comparable provision, perhaps nearer to home, or perhaps not, but in any case, merely on the grounds that it appeared more expensive.
I am as usual batting largely for special schools which at first sight can appear more expensive than mainstream schools. LEAs have in the past clearly refused to fund places in special schools because they have thought them to be more expensive than mainstream places. However, this has often been a false premise, especially if SEN children are to be provided with adequate support in mainstream schools. If the aims of this Bill are met, and all SEN children who go to mainstream schools are indeed properly supported, then any per capita cost differential which may have been thought to exist in the past ought to disappear in future. Let us not forget that special schools benefit from economies of scale and from a concentration of personnel and facilities for SEN children in a way which cannot be matched in the necessarily more dispersed environment of a mainstream school. I submit that this amendment is likely to cut both ways and I trust that the Government can accept it. I beg to move.
I am a little puzzled because the groupings list states that Amendment No. 41 has already been debated. That was the understanding of my advisers and I therefore have no speaking notes for this amendment. 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. Therefore, it is my view that this amendment is not necessary and I hope that the noble Lord is able to withdraw it. I am sorry about the confusion but I was under the impression that this amendment had already been debated; the groupings list states that it has already been debated. However, if it was degrouped last time, I apologise.
Lord Pearson of Rannoch
It was actually degrouped in col. CWH 57, when I said that I would not be speaking to Amendment No. 41 because it involved a different subject and that perhaps it should wait its turn on the Marshalled List, which is what it has done. I am sorry about that but I did not see the grouping until I came in at the start of the proceedings, otherwise I would have objected in the Whips' Office this morning. I do not quite know how to take the matter forward, except that I understand the Minister to be saying that the amendment is not necessary because local education authorities will not do what I hoped this amendment would stop them doing. All I can say is that they have certainly been doing it quite a lot in the past. It may be that we will have to look again at this amendment and have a better prepared go at the next stage.
I am happy to write at greater length to the noble Lord, Lord Pearson of Rannoch, setting out exactly what happens at present and why we do not feel that the amendment is necessary. The Bill does not affect the way in which funding for a place in the independent sector is provided where an independent school is named in the statement, and the LEA is then obliged to fund it.
Lord Pearson of Rannoch
This amendment does not deal only with the independent sector or anything of that kind. It merely says that provision cannot be considered to be unsuitable just because it is more expensive than comparable provision. That provision is often nearby and, for one reason or another, the local authority does not have a suitable place in it and does not want to send a child further away because it is more expensive. Therefore, they shove them into what is going nearest at hand. That is a common abuse that I seek to correct with this amendment.
In response, I do not think it an abuse by the local education authority to take into account cost if there is good, available provision provided by that authority. We all believe that the taxpayer must be considered in these circumstances. That, of course, happens. Cost therefore may sometimes be given as one of the reasons why it would be wrong to send a child away, for example, to a residential independent school which would cost much more than the local provision which the LEA considers appropriate to meet the special needs of a particular child.
I simply want to rise on a procedural matter to support my noble friend who said quite clearly the last time we discussed the measures of the Bill,
Therefore I am very surprised that the noble Baroness said that officials believed it had been debated. My noble friend quite specifically said that he would not debate it with Amendment No. 21. To make sure that we do not have a repeat of that interpretation of what is being done, my noble friend Lord Lucas said today that he does not intend to discuss Amendment No. 96, which was grouped with Amendment No. 36, because he will do that when it comes to its normal place in the list. My final point is on groupings. I am in the happy position of being given a draft copy of the groupings on each occasion. They come a little late and I should like to receive them much earlier. For example, I should like to have seen tomorrow's groupings before we went home tonight. However, it is important for other people who have tabled amendments that they too have an opportunity to say whether they believe that their own amendments are grouped in the right order. That would prevent us having this kind of debate now."I shall not speak to Amendment No. 41, because it is on a different subject. Perhaps it should wait its turn in the Marshalled List".—(Official Report. 23/01/01: col. CWH 57.)
I absolutely accept that the noble Lord degrouped his amendment last time and I have already apologised that that was missed. Perhaps I may say that groupings are available in the Whip's Office and when I was in the position of Members of the Committee opposite, as I was for many years, I used to go and have a look at them, not only the Front Bench spokesperson. It makes the procedure much more difficult if people do not let the department know that they want to degroup beforehand. It makes for a much more messy discussion and delays our procedures. Therefore, all I am saying is that I entirely accept that degrouping will take place; it is the absolute right of Members of the Committee to decide to do that. But it is extremely helpful if people can let us know what that they are going to do, rather than doing it when we arrive here. I am happy for tomorrow's groups to be available tonight, although that is not the normal procedure. It is usual for groupings to be provided in the morning, but on this occasion I have been through them all with officials and I am happy for the Committee to have them this evening.
This is an important point. There is an informal agreement, which I have always accepted as fair for those in opposition, that when Bills are discussed on two consecutive days, the groupings work is done by the Department. That is what happened when I was a Minister. Therefore the groupings for tomorrow could be available to all of us before we go home this evening.
I have just made that offer and we are very happy with that.
We do not know what the procedure is for seeing them. In order for us to see them, somebody has to physically have the groupings.The Minister says that it is up to everybody. I have the groupings brought to me. When the Clerk first gets them, they are brought to me and, I believe, to the Liberal Democrats, for approval. We are invited to comment on them. When we know which amendments are down, the noble Lords concerned should be given the opportunity to check whether they want them grouped as they have been, or would like them decoupled.
An opportunity is available for that and I am happy for de-grouping to take place. Lists are available in the Whips' office. It is not reasonable to ask that the Whips should deliver them personally to every member of the Committee, but members can come to change them. It is right that the groupings should go to the main Opposition spokesman, as already happens.I am sorry about what happened with amendment No. 41. I apologise for that, but it would be helpful if de-grouping could take place in advance, rather than in Committee.
Lord Pearson of Rannoch
Moving away from procedural matters, I have a question for the Minister. Why was the new clause thought to be such a good idea for more senior colleges and for higher education, including pupils with special educational needs and disabilities, but not for schools?
I do not quite follow what the noble Lord, Lord Pearson of Rannoch, is asking. This part of the Bill is only about schools. The second part of the Bill relates to further and higher education as well. I am puzzled by his question.
Lord Pearson of Rannoch
I am not making myself clear. This provision was inserted into the Learning and Skills Act 2000. It was accepted broadly by the Commons, then brought back and accepted here. The principle of the clause remains that provision should not be thought to be giving rise to disproportionate expenditure, whether it be for a more mature student or for a child in the school system. The clause would simply put in this Bill a provision that is in the Learning and Skills Act. I do not see why it should apply to more mature students covered by the Learning and Skills Act, but not to schoolchildren. I appreciate that the noble Baroness, Lady Blackstone, may want to re-gather her forces and maybe we will come back to it again at the next stage without taking more of the Committee's time, but that is a very simple question. Why is this provision necessary for, say, 19 to 22 year-olds, but not for 15 year-olds?
I think it would be better if I wrote to the noble Lord, Lord Pearson, as I have already offered, giving a fuller reply to the issues raised in the amendment and his more specific question about the Learning and Skills Act.
Lord Pearson of Rannoch
I am most grateful to the Minister and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 42:
After Clause 1, insert the following new clause—
Inform Ing Schools
(" . In paragraph 3(4) of Schedule 27 of the 1996 Act, after second "school" insert ", providing them with a copy of the draft statement,".").
The noble Baroness said: I rise to speak to Amendment No. 42. In speaking to this amendment I speak unashamedly for the schools and, indeed, for the National Association of Head Teachers, who at the end of the day will be responsible for serving the needs of all children, including those with special educational needs, and for the effective delivery of the provisions of the Bill.
It is a fact of life that some local education authorities pay no more than lip service to the duty to consult schools, in particular the potential recipient school of a pupil with special educational needs. The thrust of my amendment is to improve the quality of consultation by providing that the school, not necessarily the local education authority, can determine what steps can be taken in order to ensure compatibility, particularly when those steps are to be funded from within a school's own budget.
Just as national government tell local educationn authorities that money for special educational needs is fed into the support grant, local education authorities tell schools that funds are part of their delegated budgets. The process of conforming with the measure may involve providing no additional resources for a school to admit a child with special educational needs or may involve considerable and costly provision. The school, therefore, should be involved in the consultation process before a decision is made.
All political parties contesting the next election agree on the delegation of budgets and giving schools more control over their resources at the local level. Certainly the funding paper which is in circulation at the moment achieves that to a great extent.
I cite a hypothetical but entirely possible, even probable, situation. A local education authority is minded to agree to a particular placement for a pupil with special educational needs. The only way in which the recipient school can accept the pupil and fully meet the needs of the pupil as set out in the statement is to reduce the staffing levels at the school and thereby increase class sizes. The local education authority nevertheless names the school in the statement. That leaves the school with a duty to admit the pupil under the terms of the legislation.
I ask the Minister what would happen in that situation? Would the school be required to adjust its budget, and/or to reduce staffing which would result in larger class sizes in order to admit the pupil? The particular issue at stake here is the quality and effectiveness of the process and the degree to which the local education authority consults with the potential recipient school in good time before taking a final decision. I emphasise the words "in good time" because if the negotiations are held at a timely point in the proceedings, it gives the school and the local education authority an opportunity to thrash out some of the issues of proper support for young people with special educational needs when the statement is made.
The National Association of Head Teachers, other teacher organisations and teachers in general—this needs to be emphasised—support the primary aims of the Bill. However, they are rightly concerned that the necessary funding and support will not be available in order to make the Bill work.
Schools want more say in the process and a strengthening of the obligation on local education authorities to consult with and to take into account the views of schools, of their heads and of their governing bodies when the statement is in draft form. If schools abuse their position and simply use this process as an excuse not to admit a pupil, that can be tested. But where there is genuine tension as regards meeting the needs of a child with special educational needs and ensuring also that the needs of all other children are met, the more qualitative the discussions that take place before a statement is finally agreed, the better. I beg to move.
Baroness Sharp of Guildford
I support the spirit of the amendment. It is extremely important that schools should participate in the discussion and in the development of these statements. However, I do not fully agree with the noble Baroness' assertion that all political parties supported further extension of local management of schools. The Liberal Democrats feel that it has gone as far as it should go at the moment, partly because of the need to keep sufficient resources at local authority level to meet special educational needs. Needs frequently arise in one school and then another and it is very difficult to predict where they will be. The more that money is dispersed, the more difficult it is to meet those needs. However, that is a different issue.We feel very strongly about the importance of keeping schools informed in the process. That is the spirit of the amendment.
Lord Davies of Oldham
I was grateful for the comments of the noble Baroness, Lady Sharp, because we all recognise that the issue of resources is of import. Local authorities will have to have sufficient resources to meet some of the interesting challenges in the Bill.Let us be absolutely clear about the present situation. It is not conceivable that a local authority can make an intelligent judgment on how to solve the problem of particular placements without adequate and full consultation with any school that might be involved. The usual practice is for local authorities to provide schools with a copy of the draft statement, because without that information the school is in no position to consider whether it can meet the child's needs or whether the admission might affect the provision of efficient education for other children. The answer to the particular case that the noble Baroness, Lady Blatch, offered as a problem—of course we all face many problems in this area—is that the local authority would be required to make resources available to meet the need that she identified. The normal practice is for designated schools to be consulted, but we recognise that, under the 1996 Act, that can be strengthened. We therefore propose that the revised code of practice, which was published in July last year, incorporates guidance on consultation before a school is named in a statement. That will be further enhanced in the final revised code to indicate that LEAs should provide full information, including the draft statement, to the proposed school. Although we are resisting the inclusion of these words on the face of the Bill, we recognise the need to strengthen the obligation on the local authority to provide the necessary information. We propose to do that by strengthening the code. I hope that, with those reassurances, the noble Baroness might consider that the points in her amendment are met.
I thank the Minister for his reply, but can he tell us where in statute the school has the right—not as a matter of courtesy or normal practice, but the right—to see a draft statement and to be consulted about what should go into a final statement?Secondly, some of us are slightly worried about the code of practice. There has been some concern about the consultation, although it was extensive, and representations have been made. However, I understand that the next time we see the code of practice, it will be the definitive article. That does not give us an opportunity to test the quality of the changes that will be made as the result of what has been said here and in the consultation process. To give one example, the Secretary of State very quickly responded to the consultation and reverted to the need to specify in a statement the particular needs of a child, not simply to resort to broader wording. I do not know whether the noble Lord is aware that there is an undercurrent of rumour: that the code will state that the provision will be quantified as necessary. If a child requires a statement I should have thought it necessary in every instance to set out and specify in a statement what those educational needs will require by way of provision. We should like some assurance that we shall see a draft of this code. After all, much of the work must now have been done. Many of the policy decisions have been taken. We should like to see this code in draft form while the Bill is proceeding through this House or another place so that we can see whether some of the fears that we express through our amendment will be met.
Lord Davies of Oldham
We are concerned about the proposal that we could begin again the process of consultation on a draft code. That would delay much further the development of the code in association with the Bill before the Committee. We do not want undue delay with regard to the development of the code. At the same time we seek to ensure that the code is developed alongside the representations made during the passage of the Bill and the points emphasised with regard to clarity on practice.It is the intention under the code to provide full information to the proposed school, including the draft statement, and to emphasise that under the legislation—the noble Baroness played a considerable part in developing the 1996 Act—it was expected that no process in the development of a statement would be able to take place without appropriate and full consultation. That is going on in the majority of cases at present. That will be reinforced in the code.
My impression about the draft statement was more specific. I believe that there should be a statutory obligation for the school to see a copy of a draft statement. The school may wish simply to take it as read or to discuss further the contents of the statement. However, if we wish to reduce the tensions when a school is obliged under the law to receive a child, there should be an opportunity to see the draft statement before it is finally determined. I cannot see the provision anywhere in the statute. The noble Lord has just referred to "good practice". I am not talking about that. I am simply saying that there should be an obligation for schools to see the draft statement.
May I ask a question? What has force in law as far as regards the code of practice? Schools and LEAs have to have regard to the code of practice—it is getting longer and longer—and one wonders how much regard they will have for it. Is there any possibility that it could be strengthened in statute to make sure that they have some legal obligation to follow the code of practice in all its elements?
Lord Davies of Oldham
The straightforward answer is that if we put everything in statute we would not need a code of practice. But we would also lose the flexibility which codes of practice can produce for the way in which legislation is interpreted and implemented. The answer to the noble Baroness' question is quite straightforward— there is no right for schools to be consulted directly in those terms.We shall consider what has been said this afternoon.
I am very grateful, that is an offer I cannot refuse. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Baroness Sharp of Guildford
moved Amendment No. 43:
After Clause 1, insert the following new clause—
"Statements of Special Educational Need
Factors To Be Taken Into Account
In section 324 of the 1996 Act at the end of subsection (2) insert—
"and shall have regard to—
The noble Baroness saids: I shall speak also to Amendment No. 44. These two amendments take us back to our discussion at the beginning of this afternoon on the first group of amendments. They also take us back to the discussion we had last week about what principles should underlie statements of special educational need. The amendments would incorporate two important points in Section 324 of the 1996 Act, which deals with statements of special educational needs.
First, the amendments would insert a set of principles that should govern special educational needs statements. That has never been done before, but in many senses it is fundamental. Many parents have very little idea of the basis on which special educational needs statements are made.
At Second Reading, I quoted the case of a local education authority official dealing with special educational needs and a vociferous middle class parent who knew precisely what his rights were and was fighting the local education authority for his child to be sent to a particular special school to meet his needs. The official admitted that the LEA had three sets of priorities: the first priority lay with those parents who were taking the authority to court; the second priority lay with those parents who were threatening to take the authority to the tribunal; and the third priority lay with the majority of parents, who had no idea of their rights. That is not satisfactory. Parents should know what their rights are.
Later in the Bill we shall deal with the conciliation service and the importance of informing parents what their rights are under that service. We very much hope that the friendlier procedures will give parents a better idea of their rights. Nevertheless, it seems appropriate to incorporate some broad statements of principle in Section 324.
The amendment is straightforward—probably much too straightforward. I recognise that the drafting is brutish, but it says what I want it to say. First, the best interests of the child shall be the paramount concern in any statement. Secondly, the wishes of the parents and, where ascertainable, the wishes of the child shall be taken into account. Thirdly—this takes us back to the amendment that the noble Lord, Lord Pearson of Rannoch, talked about earlier—financial resources shall not be the paramount consideration, as, I regret, they frequently are. That is hardly surprising, because local education authorities have to find the money to meet some very expensive special educational needs. As the Audit Commission concluded in 1992, while there are enforceable rights to the provision of specified needs in the statement,
"there is an incentive for LEAs not to specify what is to be provided because they thereby avoid a long-term financial commitment".
That is why the amendment specifies that the best interests of the child, not the available financial resources, shall be the dominant factor in determining what provision is made.
Amendment No. 44 says specifically that,
"Any such specification of special educational provision under subsection (3) shall be invalid unless it shall sufficiently state the duration and frequency thereof".
For example, the specification states that they shall have speech therapy, but it does not say how much speech therapy; how often they should receive it; nor that it should be monitored to decide when it should cease. There is, thus, a remedy here in terms of an amendment to the 1996 Act. I beg to move.
Lord Beaumont of Whitley
I apologise to the Committee for not having been here the first day when the noble Lord, Lord Ashley, very ably moved my amendments for me. I was struck low, I regret to say, by an infected duck's egg and was totally unable to attend the Committee. This is, however, a very important amendment and should go on the face of the Bill, particularly—and my party takes a strong view on this—the inclusion of the consideration with regard to the wishes of the child. Moreover, Amendment No. 44, with the specification to state officially the help that is to be given, is absolutely vital. These matters ought to be pursued to the very end and I hope that the Government accept them both.
Baroness Darcy de Knayth
I strongly support these amendments and Amendment No. 44 in particular. As the noble Baroness, Lady Sharp, said, the law requires a statement of special educational needs to specify the special educational provision. However, LEAs draft vague statements with the aim, as the Audit Commission research indicated, of avoiding long-term financial commitment. Certainly, in IPSEA's view, quantification is always necessary and without it there is no guarantee that children will receive the provision they need, which is the whole purpose of the statement. That view is strongly held by the overwhelming majority of organisations in the voluntary sector. That was apparent when they responded to the consultation on the proposed code of practice. Perhaps I might quote one or two briefly.The National Autistic Society said,
Mencap said,"Statements which do not specify the level of provision and support necessary for the child to receive an appropriate education risk leaving provision open to interpretation, reduction. and unfortunately in some cases, misinterpretation".
"There are already too many statements with insufficient specificity to provide a firm foundation for active partnerships between parents and schools. Statements that lack specificity are by their very nature open to differing interpretations by the school, parents and the LEA and are likely to lead to more rather than less conflict between these parties".
I shall not continue but there were many more.
Lord Davies of Oldham
I am unhappy about Amendment No. 44 and even more unhappy about Amendment No. 43 for reasons which I now hope to make clear to the Committee.I understand the objectives behind Amendment No. 43, which seeks to impose restrictions on the LEAs' decisions in relation to writing statements that go beyond the current provisions in Schedule 27 of the Education Act. Those require that LEAs shall specify the parents' choice of school in the child's statement, unless it is unsuitable to the child's age, ability and aptitude or to his special educational needs; or his attendance at that school would be incompatible with the provision of efficient education for the children with whom he will be educated; or the efficient use of resources. The first part of Amendment No. 43—the interests of the child—is covered by the requirement under Schedule 27 to ensure that a school is suitable to the child's age, ability and aptitude or to his special educational needs. The second part of the amendment would require LEAs to have regard to parents' wishes and, where ascertainable, the wishes of the child. It is already established law that LEAs should have regard to parents' wishes. Advice in the draft revised SEN code of practice strongly encourages LEAs to take the views of the child into account, not only during statutory assessment but also throughout the child's school career. The third part of the amendment would effectively disallow LEAs from considering their resources at all when considering parents' choices of school. That cannot be right and I am sure that the noble Baroness, Lady Sharp, recognises that her colleagues on local education authorities wrestle with such issues continually. It would run counter to LEAs' general duty to provide education as efficiently as possible and the specific provisions of Schedule 27. In view of this, I believe that she may consider, on reflection, that the amendment would not prove acceptable. Turning to Amendment No. 44, this would require LEAs to specify special educational provision in statements in such a way as to include its duration and frequency in all cases. The amendment is unnecessary and inappropriate. Section 324 already requires LEAs to specify provision to meet all of the child's special educational needs. Part B of the schedule to the Education (Special Educational Needs) Regulations 1994 requires an LEA, in completing the statement, to specify the special educational provision that the authority considers appropriate and in particular to specify
Each child's special educational needs are different. LEAs must have the flexibility to specify provision that is necessary and appropriate to the special educational needs of each individual child. In specifying special educational provision in a statement. the LEA will need to take into account the outcomes of the statutory assessment of the child's needs and the setting within which the child may be taught. In many cases it will be necessary to quantify the provision to meet some or all of the child's special educational needs while in others it may not. It will depend on the circumstances of each individual case. It would not be right for provision to be specified in terms of its duration and frequency in every case. Requiring LEAs to quantify special educational provision in every case would be against the interests of those children whose special educational needs change frequently and require flexibility of provision to meet those changing needs. For example, a child with a speech and language impairment could be expected to progress rapidly in some areas. The content and precise detail of speech therapy provision—the noble Baroness, Lady Sharp referred specifically to a child in that category—will therefore need to change, often on a weekly basis. Where a child's school is specially resourced to cater for particular special educational needs, it can offer provision which is tailored precisely and varied easily by the school to meet each individual child's needs in a flexible, responsive and appropriate way. In any event, if parents feel that the provision is not specified clearly enough in the statement, or that it should be further quantified in terms of duration and frequency of support, they have a right to appeal to the tribunal. We made clear prior to and during the debate on Second Reading—last week my noble friend Lady Blackstone gave further reassurances to the Committee—that we will retain the requirement in the SEN regulations and the revised SEN code of practice for LEAs to specify the provision to be made for each child. I am happy to state that reassurance again today and I hope that on that basis the noble Baroness, Lady Sharp, might be prepared to withdraw her amendment."any appropriate facilities and equipment, staffing arrangements and curriculum."
I repeat my earlier point that there is concern about reverting to specifying. Does the department intend to be unequivocal about specifying, or will there be a qualification as necessary that then allows flexibility for the local authority to determine whether it is necessary to specify? There is some concern among groups which represent people with disabilities. It would be helpful to know what will go into the code of practice. Will it be unequivocal that the provisions required to meet the special educational needs of the child will be specified, not "as necessary", but in every case?
I have a further question to add. As I have said several times, the current position to which the Government are, thankfully, reverting is not in itself satisfactory. There are many instances of statements coming through as we discussed on Amendment No. 32. Vague reports are coming from the education psychologists and, on the back of them, the statements are very vague. "Specify" seems to have become less and less of an exact term and one which can mean whatever the local authority wishes.It would be helpful if we set out in the legislation or the code of practice that statements should be clear not just to the local authority but to the schools which have to put them into practice and to the parents of the children who need to understand what is being offered to their child. Approaching this from a different angle, perhaps we could consider an obligation to ensure that the statements are written not just for the local authority but are clear to the school and the parents. That would address many of the difficulties which the noble Lord raises in relation to amendments I would otherwise wish to support.
Baroness Darcy de Knayth
Before the noble Baroness, Lady Sharp of Guildford, decides what to do, surely we do not want the parents to have recourse to tribunals all the time. That is not an answer. Am I right in thinking that the majority of appeals by parents to tribunals are about the provision in the child's statement of special need, not about the choice of school?
Lord Davies of Oldham
I am grateful for the further representations made in Committee. Perhaps it would help if I went into rather greater length about what we expect to be specified in the revised code of practice. to make clear what a child's statement should look like. We all recognise that we seek to ensure that the child's needs are met. Therefore we need the force and the clarity of the statement to ensure the child's needs are met while at the same time requiring the flexibility inherent in the child's development within the school. In some circumstances, that may make a statement very difficult to specify over a considerable period of time.In the revised code of practice, we shall insist that the child's statement should describe clearly all the child's special educational needs in full; set out the main objectives that the special educational provision aims to meet; specify clearly, and quantify as necessary, the provision required to meet the child's needs; describe the arrangements for setting shorter-term objectives for the child; describe any special arrangements for the annual review of the statement; recognise the need for the school to monitor and evaluate the child's progress during the year; and recognise the need for the LEA to monitor the child's progress towards identified outcomes with the school. We shall make clear that LEAs should not have blanket policies not to quantify provision in statements but should seek to meet the clear objectives identified in the code. It will be recognised that in these difficult areas—I accept the force of the amendments and the importance of this debate—a balance needs to be struck between the necessary identification and requirement from the statement with the flexibility of the developing child.
The noble Lord will not welcome my intervention at this point. The noble Lord has read out the words "quantified provision as necessary". That leaves the local education authority free to determine whether or not it is necessary to quantify. I have been alerted to that suspicion by people who are concerned about special educational needs. They are concerned that the Secretary of State for Education has moved from the unequivocal term "specify" to the term "quantify as necessary" which is not an unequivocal statement.
Lord Davies of Oldham
I appreciate the anxieties that have been mentioned. However, we insist that the first phrase which governs the whole of the conditions will make clear that local education authorities should not have blanket policies not to quantify provision in statements. We will, therefore, not expect local education authorities to do anything other than quantify where quantification is both possible and desirable in terms of the individual child's needs.
Baroness Sharp of Guildford
In concluding this debate I shall discuss the two amendments in the group separately. I am not surprised at the Minister's response although I am disappointed, needless to say, at his response to Amendment No. 43. In particular, the third section of that amendment was bound to rile the Government and would not be seen to accord with their wishes.However, as subsequent debate has indicated, this is an area where people are extremely concerned. In some senses the Minister misunderstood what I was trying to do. There is a case for having on the face of the Bill some of the fundamental principles that the Government seek to apply here. The Minister's response, in relation to the code, was that at its core the child's needs are paramount. It would be good to have something of that sort on the face of the Bill, which is what I have been requesting. As regards Amendment No. 44, we have gone considerably further than I expected. Our exchange on precisely what the code will specify was extremely helpful. I, for one, am pleased at the greater clarification that has been provided on this matter. I share the apprehensions of the noble Baroness, Lady Blatch, that if the word "quantified" is not included, authorities will try to scrimp and save on these things. Nevertheless, there is no doubt that we shall return to some of these issues in later debate, whether under this or other amendments. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendment No. 44 not moved.]
Clause 2 [ Advice and information for parents]:
moved Amendment No. 45:
Clause 2, page 3, line 29, leave out ("with") and insert ("who has, or whose parents believe may have").
The noble Baroness said: I rise to speak to Amendment No. 45. It is not very dissimilar to Amendment No. 46. My noble friend Lord Lucas and I both say that parents who believe that their child has special educational needs should be taken more seriously. Clause 2 of the Bill obliges a local education authority to make advice and information available to parents living within its area. I do not disagree with that. Parents need to know what provision can or cannot be made for their child and where to go for advice.
However, there is a catch in the provision. Clause 2 states that,
"A local education authority must arrange for the parent of any child in their area with special educational needs to be provided with advice and information".
It is, therefore, open to the local education authority to say to a parent that his or her child has no special educational needs and that there is thus no need for it to provide advice and information. To give an example, the parents may say that they believe that their child has a learning difficulty—it may be because the child is hyperactive or for some other reason—and therefore wish to seek advice from the local education authority. The local authority, which at the time may be overburdened with many other things, would be entitled under the Act, as this particular clause is written, to say that the child has no learning difficulty and has no special educational needs. It may even advise the parent—sometimes patronisingly; sometimes with good intentions—that all the child needs is a little extra discipline and the problem will go away. It could therefore refuse to give advice and information to a concerned parent.
We are talking here only about advice and information. My amendment, therefore, carefully rephrases the opening sentence of Clause 2. It would now read:
"A local education authority must arrange for the parent of any child in their area who has, or whose parents believe may have special educational needs to be provided with advice and information about matters relating to those needs".
Therefore, if the parents think that their child needs help under the special needs provision, the local authority must provide the advice and information, whether or not at that stage—and it may be a very preliminary stage—the local authority agrees with the parents. Of course, subsequent assessment would establish whether the child does, in fact, require special provision. I beg to move.
Amendment No. 45 is better than Amendment No. 46 and would achieve exactly what Amendment No. 46 seeks to achieve. Therefore I support my noble friend's amendment.The time when parents are in particular need of advice is when they do not know what is happening to their kids; when they have worries about the way their child is developing. They see behaviour at home and aspects of the child's personality which may or may not reflect that the child has a special need, and that need is not yet being recognised in school. They need someone to whom they can turn for advice. There are one or two charities that offer that advice, but provision is very patchy—not least because the funding for it is limited. The local education authority must be in the business of providing advice about special needs— about what can be done about them, how they are assessed and how the process works—because it is the parents who do not yet know that they need that advice who need it most. I therefore support the amendment of my noble friend Lady Blatch which will open up a local authority to that capability. It will make it accessible to the parents who need it and who would benefit greatly from it.
Let me briefly add a few words of support because I believe that the noble Baroness, Lady Blatch, has found a real flaw in the drafting as we read it. In the process of obtaining help, the identification of that help is the most important part. If we give advice, we will often end up dealing with the problem quickly. It is self-evident that the early recognition of problems is one of the most important factors here. Primarily that is because, in the education system—especially now—there is very little chance of going back and repeating things. For good or ill, having a national curriculum means that we are on something of a conveyor belt and it is therefore essential to deal with matters quickly. If we can get a parent to obtain advice; to know what they are looking for and dealing with, it will make the situation much better. It will also cause less stress for the parent and the child. The noble Baroness grasped a very important point here.
I should like to begin by saying something about parent partnership services. I was glad that during the debate at Second Reading there was very broad support for our plans. That mirrored the support that our proposals received when we consulted on them last year. All English LEAs have established a parent partnership service and, as a result, parents are becoming better informed. Disputes or misunderstandings are being resolved much more quickly and parents feel more able to play an active role in their child's education; in deciding what is best for their child. The Bill will help to ensure that we build on good practice and deliver much greater consistency throughout the country. First and foremost, parent partnership services provide a flexible range of services to parents whose children have special educational needs. They aim to empower parents to play a valued and informed role in their child's education. Our decision to include a whole chapter in the revised SEN code of practice was warmly welcomed in last year's consultation.The aim of the two amendments is to ensure that parent partnership services support parents who believe that their children have special educational needs. While I have a great deal of sympathy with this view, we do not believe it is a good idea to put it on the face of the Bill. There is not a drafting problem, as the noble Lord, Lord Addington said. We recognise that in some cases parents are concerned that their child may have special educational needs, but the school or LEA take a different view. Such parents are likely to discuss their concerns with a variety of people, including other parents, their own family, their child's school and the local parent partnership service. These services have to be flexible in their approach. We are not asking them to draw any hard and fast lines. They will be required to consider parents' concerns carefully, not to be dismissive when inquiries for help or information are made. I stress that the service is designed specifically to help parents whose children really do have special educational needs. However, I am happy to assure the Committee that when we finalise the section in the revised SEN code of practice on working in partnership with parents, we will explain that parent partnerships will be expected to be flexible and sympathetic in their dealings with parents, even where there might be a difference of view between parents and the school or the LEA. We have underlined that cases where parents believe their child has SEN but the school or the LEA takes a different view must be handled very sensitively. Specifying such issues on the face of the Bill could divert resources away from those parents whose children have been identified as having SEN. In other words, the people who really need access to the great deal of support that these services provide might then lose out. I hope that noble Lords agree that that would not be in the best interests of those parents or their children. I am sympathetic to the amendment, but, given my reassurances that we will make sure that the guidance addresses this issue, I hope that it will be withdrawn.
I found it slightly baffling for the noble Baroness to say that the amendment would not be in the best interests of those parents and their children. I have been speaking on behalf of those parents who genuinely believe that there is a particular difficulty and that the educational needs of their children are not being met or need to be recognised more fully. Some celebrated cases have ended up in the courts—not just the tribunals—after parents have become highly frustrated trying to get someone to take notice of them.It would be relatively simple to do two things. First, a parent who believes their child has a problem should be treated sympathetically and taken more seriously. The teacher and the school or LEA should look into what the parent believes are the problems and come to an agreement on whether there is an educational need, which could then be challenged. Secondly, to underpin that the parents must have the right to advice and information. I am not asking for a full assessment. I am simply asking that a parent who believes that their child has a need for special educational provision should have a right to advice and information. This is an important amendment. The noble Baroness does not sound sympathetic and believes that, as long as people are sympathetic and the issue can be written into the code of practice, that will suffice. I genuinely believe that parents who want advice and information ought to have a right to receive it or to be pointed in a direction where they can receive it.
There is a slight difference of emphasis between the Government's view and that of the noble Baroness, Lady Blatch. I did not wish in any way to suggest that it is not in the interests of those parents to get as much advice and information as they can have. I was suggesting that if we were to put this matter on the face of the Bill and give them an absolute right, it might spread resources very thinly in relation to those parents whose children have been agreed by all parties to have special educational needs. It was that group to which I referred. I wish to correct that slight misunderstanding.I do not believe that the parent partnership services will turn away parents who are seeking advice and information. Wherever possible they will provide it but there is a matter of priority here. Where children definitely have special educational needs—that has been agreed by the school, the local education authority, educational psychologists and others—they need to have access to this advice and information. They must have priority. We shall make it absolutely clear in guidance that we expect the parent partnership services to try to help and support any parent who wants information. We think that that is the right place rather than placing an absolute right on the face of the Bill.
Under the procedure in the Moses Room, all that is left open to me is to withdraw the amendment. I may well return to it. I hang on to what I believe was a pledge on the part of the Minister: that there will be specific reference in the code of practice not only to children with special needs but to children whose parents believe that they have special needs. If that is the case, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[ Amendment No. 46 not moved.]
moved Amendment No. 47:
Clause 2, page 3, line 30, at end insert ("all alternative options on").
The noble Baroness said: My noble friend Lord Baker of Dorking is not present. I can be brief in speaking, with his permission, to his amendment.
With or without prejudice to whether he would have supported my amendment, my noble friend simply says that in advising and providing information to parents all the alternative options on matters relating to the special needs would be incorporated. It is a straightforward issue. It is important that advice and information should not be limited only to what the LEA wishes but that advice and information are given in a much wider context; and that alternative options should be made available as a matter of information and of right to parents who seek advice and information. I beg to move.
Amendment No. 48 standing in my name and that of my noble friend reflects the experience of many parents who seek the best for their child under the current law. They spend vast amounts of time usually through voluntary bodies trying to find out the law and what they can do.The situation is not as bad as it was but it can still lead to horrendous situations where people waste vast amounts of time. They do not find out what they are legally entitled to often because people do not know or do not regard it as their duty to tell them. If we put some provision like this into the Bill, or some form of legal framework, we shall at least know when the people in power are not doing their job. Whether we like it or not, people have commented time and again, "We didn't know"; "They didn't tell me"; "I didn't know you could do that"; or "Oh, really, can you do that?" I am sure that case studies can be provided very quickly. I hope that the noble Baroness will accept that this experience is almost universal to the parents of those with special educational needs. The amendment is one way of addressing the issue. I hope that the Government will give it a fair wind.
The Government are aware that it is essential that parents know about the wide range of options that will be available to help them make good decisions about the education of their children with SEN. It is fundamental to the role of the parent partnership services. The Bill provides for advice and information to be given about matters that relate to children's special educational needs, and those will include details of how the SEN system works, parents' and children's rights, and the various options that are open to parents. I am happy to give Members of the Committee an assurance that the revised code of practice will explain that advice, and information about those SEN matters should be given as part of the minimum standard that the partnerships will be expected to reach.Turning to Amendment No. 48, we know from consultation that parents want and need more information and guidance on the SEN system and on their legal rights. I accept some of the points that the noble Baroness, Lady Blatch, and the noble Lord, Lord Addington, have just made. The SEN system is complex and it can be difficult to understand. One of the core functions of the parent partnership services will be to explain the system to parents and that includes informing them about their entitlements within it. Parents need the knowledge and skill required to play an informed role in thinking about what their children's needs are. We expect all those services to provide accurate information on both the role and rights of parents; without that information they cannot take informed decisions. I am happy to assure the noble Baroness, Lady Blatch, that that will be underlined in the code of practice and the draft good practice guidance. I hope that, in the light of that reassurance, the noble Baroness will feel able to withdraw her amendment.
I am grateful to the noble Baroness. In fairness to my noble friend to whom I was doing a favour, I shall leave him to read what the noble Baroness, Lady Blackstone, said, which I believe is helpful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendment No. 48 not moved.]
moved Amendment No. 49:
Clause 2, page 3, line 40, leave out ("proprietors") and insert ("governing bodies").
The noble Baroness said: In moving Amendment No. 49, I shall speak also to Amendments Nos. 50, 53, 57 and 81. With my amendments the Bill would require head teachers and governing bodies of all schools in their area to be informed.
While the head teachers of all schools (both maintained and independent) should be kept informed about facilities for special educational needs—that has been provided for in this clause of the Bill—so too should the governing bodies of all schools, both maintained and independent. Under the terms of this clause as written they are not included. Involving both head teachers and governing bodies would ensure that all schools are well informed, even if a particular head teacher or governing body was unsympathetic to special educational needs.
There is an additional purpose for Amendment No. 49. All independent schools have a governing body, but very few independent schools have a proprietor. Where there is a proprietor, he is also the governing body. Therefore it would be better to substitute "the governing body" for "proprietor".
Most independent schools are "not-for-profit" registered charities, and thus have trustees and a governing body. A few independent schools are "for profit" and are owned by a proprietor who is the governing body, or may already have appointed a governing body.
As the Bill is currently written, whatever the legal advice may have intended, those in education will interpret "proprietor" as meaning the owner of a profit-making school, and will not include all the nonprofit-making schools that are registered as charity schools. The term "proprietor" needs to be amended throughout the Bill.
Turning to Amendment No. 50, paragraph 6 of Schedule 27 of the 1996 Act provides that when an LEA makes a statement on a child, the LEA shall make certain information available in writing to the parent. Included in that is paragraph 6(b) which requires the LEA to give the name of the person to whom the parent may turn for information and advice.
I expect that the Minister will say that the new provisions in Clause 2 for information and advice to be made generally available to all concerned remove the need for paragraph 6(b) in the 1996 Act, hence the Government's proposal to omit it. I do not agree with that. The new requirements make advice and information generally available to parents, teachers, governing bodies and so on. However, once a parent has a special educational needs statement made on their child, regardless of whether they agree with it, they may well need to turn to one or more experts for more information and advice. For example, they may need to know the names of consultants who can advise in detail on dyslexia, autism, violent behaviour, speech, sight or hearing difficulties. It would be arrogant of the local authority to deny such help to that parent.
My amendment would not delete paragraph 6(b) of Schedule 27, but would amend it so that the names of several people who could help would be given, if appropriate. It is not uncommon for experts in the field of a child's perceived special need to include persons and voluntary bodies outside the LEA.
Amendment No. 53 goes back to my argument about the proprietor and inserting the relevant authorities. I explained earlier that the term "proprietor" has a limited meaning in ordinary educational parlance. It would be far better to use the term "relevant authority", which covers all types of school.
Amendment No. 57 again goes back to proprietor and relevant authorities. The governing bodies of all the independent and maintained schools should be informed, not just the proprietors and the head teachers.
On Amendment No. 81, the definition in Clause 8 of "responsible body"—those who can make the request for reassessment—is rather strange. The Bill says that if a child is in a maintained nursery school or a pupil referral unit, the responsible body is the head teacher, but for all other schools the responsible body is deemed to be the proprietor. I am concerned on two accounts. First, the term "proprietor" reflects the normal accepted meaning and not what the parliamentary draftsman chooses to make it mean. It should be replaced by "governing body". My second concern goes further than that. If it is right for the head teacher of a maintained nursery school or a pupil referral unit to make a request for a reassessment of a child, it must also be right for the head teachers of all other types of school to do so. The amendment would replace the word "proprietor" with the phrase
"headteacher and the governing body (or both)".
thus enabling either or both to make an application for reassessment.
Whatever comforting words come from the Minister, the amendment will be pressed to the barricades. "Proprietor" is not the right word. Governing bodies, head teachers and others need to be included. I beg to move.
Not all independent schools are required to have governing bodies and many do not. The amendment would mean that LEAs were not required to inform those in charge of some independent schools about their parent partnership services. Independent schools have nothing to fear from being informed about the arrangements for parent partnership services. They do not allow LEAs to intervene in the day-to-day running of independent schools. The service is simply available to help the parents of children in those schools, as it is for other parents. There are many cases of children with special educational needs in independent schools. It is just as essential that they have access to the information and advice they need to enable them to make informed decisions as it is for others. If those in charge of independent schools were not aware of these services, the parents of the children in those schools could be at a disadvantage compared with those whose children are in maintained schools. Members of the Committee will agree that parents of children at independent schools should have the same right of access to both information and advice.Turning to Amendment No. 50, at present parents have access only to a named person where the child has a statement. In future all parents whose children are identified as having SEN will be able to draw on the support of an independent parental supporter if they so wish. By "independent" we mean that they should not be part of the decision making process that is going to affect the particular child's provision. Not all parents will wish to have support of this kind but, where they do, they should certainly have access to it. The independent parental supporter can provide parents with more information and make them feel that they are real partners, which of course they should be. Members of the Committee have raised concerns that the right of parents to have access to an independent parental supporter is not on the face of the Bill. In the draft code of practice, however, we say that there needs to be a range of practical services, including access for all parents to an independent parental supporter. The IPS should be seen as a central component within the range of services offered to parents. Naturally, the code is statutory guidance to which LEAs have to have regard. Amendment No. 53 seeks to limit access to the new arrangements for preventing and resolving disputes to maintained schools, maintained nursery schools and pupil referral units. This would mean that where a child has a statement to attend an independent school, or attends a non-maintained special school, the parents of that child would not be entitled to use the new dispute resolution arrangements. The Government believe that it is important for access to these new arrangements to be widely available. Disputes regarding a child's statement can occur in any school. We need to minimise the disruption to which disagreements can lead. We have recognised that it would not be appropriate to require independent schools to take part in these arrangements unless they are receiving LEA or central government funding. That is why the definition of relevant schools excludes independent schools in other circumstances. Turning to Amendment No. 57, the Government recognise that it is essential that parents know about the new dispute resolution arrangements and that information is widely available, so that parents are enabled to make the informed decisions that we all want them to be able to make. Where a child has been placed in an independent school by a statement of SEN, the parents of that child still have a right to know about the dispute resolution services and LEAs have a duty to inform proprietors of schools so that parents and schools know of these services. I turn now to Amendment No. 81. We have some sympathy with this amendment which would enable all head teachers of relevant schools to request an assessment of a child's special educational needs. However, we cannot accept the amendment as it stands and simply delete the term "proprietor" in favour of
That is because some of the institutions that will be covered by this Bill, such as city academies, will not have statutorily recognised governing bodies. The term "proprietor" encompasses both governing bodies and the management of city technology colleges, city academies and city colleges for the technology of the arts. We are, however, prepared to consider adding "or head teacher" at the end of Clause 8(12)(b). I hope the noble Baroness will be able to accept my general reassurances and withdraw her amendment."head teacher and the governing body (or both)".
That is the most unsatisfactory answer I have had so far in these debates. I simply do not understand some of the things the noble Baroness said. "Proprietor" has a very specific meaning—it does not have the generic meaning which the noble Baroness gave it. Subsection (2) reads:
and if my amendment is accepted will continue, "and the relevant authority of the school about the special education provision for that child". I cannot understand the explanation that the noble Baroness has given that putting "the relevant authority"—which could be the head teacher, the governing body, the proprietor or anything, because the authority has to be relevant and has to be of the school—could limit the parents of children at an independent school from having access to the resolution procedures. It simply does not add up. The next amendment refers to subsection (5), which would state:"A local education authority must also make arrangements with a view to avoiding or resolving, in each relevant school, disagreements between the parents of a relevant child";
"The authority must take such steps as they consider appropriate for making the arrangements made under subsections (1) and (2) known to—
The noble Baroness, Lady Blatch, has been very critical of the legal advice which lies behind the answers I gave in my initial reply to her amendment. I understand that "proprietor" has a very long-standing legal meaning. It is defined in Section 579 of the Education Act 1996 as meaning:
I think it goes back much earlier in legislation—it might even go back to the 1944 Act. That is the legal reason for using this term. It covers all the points the noble Baroness raised because it applies to governing bodies."The person, or body of persons, responsible for the management of the school, including governing bodies".
I have never believed that two wrongs make a right and that just because it has been in previous statutes in fact becomes the reason and rationale for it to be here now. If one looked in a dictionary, "proprietor" would not have the wide meaning, while "relevant authority" does. It is the relevant authority of the school, and the relevant authority will be different in different situations— boards of trustees, boards of governors, head teachers. Indeed, it goes even further than that: "relevant authority" will pick up more than one person while a proprietor is only one body. It may be that it is just the head teacher or the governing body, but not both; whereas "relevant authority" will pick up any authority that is relevant to the school. My view is that my amendments would make more sense. I shall withdraw them for the moment, but we shall come back to all of them on Report, so this Committee procedure will not save a great deal of time. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendment No. 50 not moved.]
Clause 2 agreed to.
moved Amendment No. 51:
After Clause 2, insert the following new clause—
(" . In the 1996 Act, insert the following section—
"Duty to research.
318A.—(1) The Secretary of State may fund research into the operation of this Part, and into the effectiveness of alternative methods of educating children with special educational needs.
(2) For the purposes of such research, a local education authority shall collect such data as the Secretary of State may require.
(3) For the purposes of such research, a school shall provide a local education authority with such data as may be required for the purposes of subsection (2) above."").
The noble Lord said: We are looking at spending a great deal of money on special educational needs and putting the future of a great many of our children at risk on the basis of decisions on how to spend money on their behalf. We ought to know that it is being spent effectively. I do not know any way of doing that other than by research into what is done on behalf of children in deciding which way is best.
It has taken us an astonishingly long time to come round to that in medicine, but we now have proper evidence-based medicine. We are gradually reaching the point of chucking overboard some long-established and ineffective practices and supporting some effective practices that had been confined to the wilderness. In education we have not yet reached that point.
This is a good place to start. The noble Baroness was kind enough to write to me with a description of the three current SEN research projects. It is a very short list of projects—not at all the 20 or 30 pages that I had hoped to receive and that one ought to receive into such a difficult, complicated and long area, which should be the subject of a great deal of long-term research and a lot of looking forward to 10 years hence when we will really understand what works best.
I hope the noble Baroness will be able to reassure us that what we have learned in health will be applied to education. I beg to move.
This is an interesting amendment. Listening to the noble Lord, Lord Lucas, reminded me that when I was Secretary-General of Mencap, many educational theories were put forward—not necessarily in this country, but in America and Hungary—that divided parents forcibly. There were many rows and high costs were involved for parents to undertake these experimental educational processes outside this country. It would be very good if such research were undertaken by the appropriate authorities and parents could be told with certainty how specific educational processes might work for their child. There is no doubt that a great deal of money has been wasted by parents in chasing will-o'-the-wisp educational methods in the past 20 to 30 years. All of us touch wood when we have a disabled child born to us, but touching wood in education seems to have been a very expensive process. I welcome the amendment, although it may not be correctly worded at the moment.
I support the principle of ascertaining the best way of helping SEN children, but I cannot help wondering whether that is best done by research or by assessment and dissemination of best practice.
Baroness Sharp of Guildford
I support the amendment. I am glad to see subsection (3), because schools are currently inundated with requests for data, largely from the Department for Education and Employment. It is good to protect them from that and to put the duty on the local education authority rather than the school.Evidence-based practice is a very good idea. I should like to come in in support of the social sciences as distinct from the medical sciences. There has been a great deal of very distinguished research in the educational field. We have a number of extraordinarily good institutes such as the National Foundation for Educational Research. Over the years they have published a great deal which has not always been adhered to by politicians.
As the noble Baroness, Lady Sharp, the noble Lord, Lord Lucas, and the noble Lord, Lord Rix, know, I am very much in favour of having good research to back up policy making and in support of parents who need as much information as they can possibly get about special educational needs. Good research providing evidence about ways in which we can best help children who have special educational needs is really vital if we are to make progress.Amendment No. 51 confers a power on the Secretary of State to conduct research and in particular points to the possibility of research into the effectiveness of different methods of educating children with special educational needs. There are also duties requiring LEAs and schools to collect data. The amendment is unnecessary. The Secretary of State already has the power to fund research into the operation of the special educational needs framework. Indeed he has the power to fund research into any element of activity across his remit. The Secretary of State has used his existing power to fund a number of projects on special educational needs and I set out a few examples in my letter to the noble Lord, Lord Lucas. I could give another 10 or 15 but I shall not go through a long list because I do not think that that would further the purpose this afternoon. I am happy to give the noble Lord a longer list if he would like it. There is a great deal going on, far more than the examples that were given. On the collection of data, I can assure the noble Lord that, once again, these powers already exist in Section 29 of the Education Act 1996. The Secretary of State can require LEAs to provide him with such information as he may require, and in particular information about the provision of education for children with special educational needs. LEAs are obliged to compile such information and to make arrangements for conducting or assisting in conducting research for this purpose. Section 537 of the Education Act 1996 allows the Secretary of State to require governing bodies to provide him with the information that is needed. Having set out that the powers are there and are being used, I hope that the noble Lord, Lord Lucas, will feel able to withdraw his amendment.
Of course I shall withdraw the amendment. However, I should like access to the long list of the research that has taken place, in whatever form the noble Baroness finds convenient to provide it, particularly if it is on the web. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 52:
After Clause 2, insert the following new clause—
Special Educational Provision: Interests Of Child
(" . In the 1996 Act, insert the following section—
"Interests of child.
315A. A local education authority shall at all times act in the best interests of a child for whom they are responsible."").
The noble Lord said: We have covered the matter before so I shall not go into all the byways of it. The basic question is this. In the Bill dealing with children, why should we not have the same basis as in other modern Acts dealing with children? That is to act in the best interests of the child.
The Minister gave one answer to that when we touched on the matter previously: that it was not clear to whom this duty applied. However, in the amendment it is quite clear that it applies to the local education authority. It would solve a lot of other problems in the Bill on how the local authority will act in particular circumstances and what matters it will bear in mind.
I remain of the opinion that the amendment would be a neat way of bringing the best interests of the child into the Bill, and one which would have many advantages for all concerned. I beg to move.
I was one of those who started this hare about the best interests of the child and it is a hare that I intend to pursue. I entirely support the noble Lord, Lord Lucas. Would there be a need slightly to reword the amendment so as to place a balance between the needs of that child and the needs of other children? That is the question I ask, though it could be taken at a later stage.
Lord Davies of Oldham
It is exactly the last point to which the noble Lord, Lord Northbourne, referred that is perhaps at issue with regard to this apparently uncontentious suggestion that the best interests of the child should come first. After all, we would surely all agree that the watchword of all statutory service providers for children should be to seek to act in children's best interests. The problem arises in terms of the necessary balance to be struck between best interests and available resources.The SEN framework already safeguards the interests of children with SEN. The wider framework of education Acts is intended to ensure that the educational interests of all children are protected. Placing a duty on LEAs to act in the best interests of individual children would not improve the way children's special educational needs are met. LEAs are already under general duties under the 1996 Act to make provision for children with special educational needs. They have a particular duty to assess and make suitable arrangements for children with the greatest difficulties. Governing bodies of maintained schools have a specific duty to use their best endeavours to make the necessary provision to cover the learning difficulties of all the children in their schools. The current statutory arrangements, supported by the advice given in the SEN code of practice to schools, LEAs and others, already provide for children's special educational needs to be addressed. Our SEN action programme, of which this Bill forms an important element, is designed to improve SEN provision. The amendment would promote unproductive contention and argument rather than the partnership we are trying to promote. What constitutes the best interests of the child is not always straightforward and clear cut. Those noble Lords with children will be aware that there can be divergence between what a child considers, and what its parents consider, to be in his or her best interests. Many of us would probably confess that the two parents can also differ on what they consider to be in the best interests of their child! We are all aware of the difficulties that occur in this area. Where relationships are good, there ought to be negotiation and agreement on how to make proper provision. Through parent partnership services and conciliation arrangements we are promoting improved relations between parents and schools and LEAs. Thus, through working together, children's needs can be met effectively. Ultimately, schools and LEAs have to use their professional judgment on how to meet a child's learning difficulties. In some cases parents will continue to disagree with decisions arrived at by schools and LEAs. However, in such cases parents will continue to have the right to ask for their children's needs to be assessed and to appeal to the SEN tribunal. We all know that parents will always, quite properly, demand more than may easily and readily be provided by the local education authority or school. This apparently straightforward amendment—with whose sentiments I could not possibly disagree as a basis of principle for all our actions in relation to children—concerns the allocation of resources to needs. That, surely, requires a framework of partnership, negotiation and reconciliation rather than a mere statement of principle.
I am grateful for that helpful reply. We shall doubtless return to the subject at Report stage but will be better informed when we get there.. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [ Resolution of disputes]:
[ Amendment No. 53 not moved.]
moved Amendment No. 54:
Clause 3, page 4, line 13, after ("made") insert ("in a statement").
The noble Lord said: I beg to move Amendment No. 54. There are some interesting amendments in this group but mine is just technical. I beg to move.
Baroness Sharp of Guildford
I aim to speak to Amendment No. 55 in this group and also to Amendments Nos. 58 and 59, which also fall within this group.The purpose of these amendments is to specify in slightly more detail some of the issues that arise in relation to the parent partnership conciliation service. By and large, we support the idea of an intermediate body between the schools and local authorities and the tribunals. There is no doubt there have been difficulties here and the notion that you can have a more informal body in the way in which you can help to reconcile the differences is a good one. The reservation is whether there will be enough people both to provide the advocacy support for parents on the one hand and to provide those who will end up as the conciliators and facilitators provided for in the Bill. It is suggested here that whoever plays that role is an independent arbitrator, and we would very much endorse the independence. However, we also feel rather strongly that whoever does this job should be well informed about special educational needs provision. As those of us who are participating in the Bill recognise, it is an area where there is a great deal of case law, practice, codes and so forth, and it is not one that somebody coming in from outside with no knowledge of the area could easily fulfil. Therefore, the purpose of Amendment No. 55 is to suggest that it should not only be an independent person but someone who is knowledgeable about the issues arising in special educational needs. Amendment No. 58 picks up a different issue, which is that the conciliation service might be seen as something of a soft option and parents might be pushed in that direction without being informed that, at the same time, they have rights. This picks up the proposal in the subsequent Amendment No. 59 that they must be kept informed that, if they wish to do so, they can proceed and go to appeal at the tribunal but that they should not be held up unnecessarily in the process of conciliation. Some of them might feel that they were be pushed towards conciliation, that there was not much hope, quite frankly, of reaching conciliation through the conciliation service and that they were going to a tribunal and they did not really want to be held up by the process of the conciliation service. It is reasonable that there could perhaps be time limits on this.
I speak to two amendments and support the other amendments but particularly Amendment No. 59. With Amendment No. 56 it is important to ensure that the independent persons who are required to resolve a dispute are truly independent of the previous decision, but, nevertheless, have the relevant expertise. So it really is a belt and braces amendment, which reads,
I hope it is self-evident that, if it is to be an independent assessment, it ought to be not just independent but seen to be independent. Amendment No. 60 is a fleshing-out or extending of the definition of "relevant school", to include an independent school named by the parents of the child. The provision of this part of the Bill needs careful examination. Clause 3 deals with the arrangements to resolve the disputes with the parents. It sets up a panel of independent persons to examine and resolve the dispute. In the clause, the term "relevant school" is used and Clause 3(8) defines what is meant in this context by "relevant school". It lists maintained schools, city technology colleges and so on, and it includes an independent school named in the child's statement of special educational needs. Where the statement does not name any independent school, or even any school at all, or where the independent school is not one asked for by the parent, then the "relevant school" in the matter of this dispute may well be one which the parent prefers, even if the local authority does not, and thus that school should be a "relevant school" and should at least be informed of the dispute and even consulted upon it. It is a matter of bringing all interested parties into the resolution process. My amendment adds to the list of what is a "relevant school" by saying,""Independent persons" as required in subsection (3) above, shall mean persons with no previous connection with the parents and the child, nor of any of the authorities involved in the dispute, but shall include persons of knowledge and experience relevant to the special educational needs of the child".
"an independent school named by the parents of the child".
I support the amendment.
Perhaps I may say a few words. The Special Educational Consortium says briefly in regard to Amendment No. 59:
"The Government have placed great emphasis on information for parents, indeed Clause 2 is all about providing this. The Special Educational Consortium believes that this is precisely the information that the Government would wish parents to have. It just doesn't say so."
Perhaps I may raise on the back of my noble friend's last amendment the disparity between the Clause 1(4) list of schools, and the list of schools we find in Clause 3(8). There are differences in drafting which I find confusing. For example, in Clause 1(4) we have in (a) "a special school", whereas here we have a school approved under Section 342. I presume they are the same. If not, what are the differences? I cannot see why we use two different words for the same group of schools in the same legislation.We have defined "mainstream school" in Clause 1(4). If we were to carry that definition through here, that would seem to be a way of shortening this section considerably and making at least the use of definitions consistent throughout the Bill. I do not understand why these two sets of definitions do not mesh. I do not understand how they do not mesh nor the reason why they do not mesh.
Lord Davies of Oldham
I thought this was a straightforward debate, and noble Lords are asking me questions about definitions that I know I will be struggling with. Let me deal with the parts I can immediately, and I hope reasonably positively.I have some reservations about Amendment No. 60, which no doubt the noble Baroness, Lady Blatch, will have anticipated. I shall come to those in a moment. The other amendments tend to develop the strong theme which ran throughout the debate that there was support for the plans of the Government to require all LEAs to establish arrangements which clearly include an independent element to avoid or resolve disputes between parents and schools, and parents and LEAs. I am confident that we shall ensure that we minimise the disruption to pupils' education and prevent damaging long-term breakdowns in relationships which have occurred in the past and which, where they occur, are obviously to the detriment of the education of the individual child concerned. I recognise that these are amendments directed towards the constructive part of the Bill. Let me deal first with Amendment No. 54. This seeks to limit access to the new informal arrangements for preventing and resolving disputes between parents of children with SEN and schools. It would mean that this new additional service would only be available to parents of children who have SEN statements. Only about 3 per cent of pupils are in that category. The amendment would have the effect of denying access to the new service to the vast majority of parents whose children have special educational needs but not a statement. It can often be traumatic for parents when their child has SEN. This can lead to misunderstanding and disagreements. The Government believe it is essential that the new dispute resolution arrangements are widely available. Disputes can occur regardless of whether the child has a statement. The new arrangements should therefore extend to the parents of all children with special educational needs, whether or not the children have statements. Increasingly, we need to find more informal and quicker ways of preventing and resolving disputes. It can often be traumatic for parents when they first find out that their child has special educational needs. The issues can be complex and hard to understand, and can lead to disagreements between parents and schools, or parents and their LEA. That is why we want the service to be provided as widely as possible. I would ask the noble Lord, Lord Lucas, to consider withdrawing the amendment. On Amendment No. 55, the Government recognise that it is essential that those helping to avoid and resolve disputes should have a wide range of skills, knowledge and expertise. Such expertise should include not only knowledge of special educational needs issues, but also, for example, counselling and negotiating skills, the ability to listen and the ability to establish and maintain communications. I am happy to give the noble Baroness, Lady Sharp of Guildford, and the noble Lord, Lord Addington, an assurance that the revised code of practice will set out that it is desirable for the independent persons appointed to facilitate the resolution of disagreements to have these skills and a sound understanding of SEN systems and procedures. We are providing £2 million from April 2001 to support the independent element of the new dispute resolution arrangements. Resources will also be made available in the subsequent year. The resources will support training for those helping to avoid and resolve disputes. I hope, therefore, that, given this strategy and these assurances, the noble Lord and the noble Baroness may consider that they can withdraw their amendments. Turning to Amendment No. 56, I can assure noble Lords that the Bill already provides for facilitators to be independent. That will not mean, however, that they have no connection whatsoever with local authorities or schools, otherwise they could not deal with the authority or school concerned on more than one occasion. What is important is that facilitators should have the necessary skills, knowledge and expertise that I mentioned a few moments ago. Some have called for impartiality rather than independence. Parents who responded to our consultations on the Green Paper, Programme of Action, and the response to this Bill, clearly signalled that they wanted a degree of independence in the new arrangements. The code of practice accompanying this Bill would clearly set out guidance on who an independent conciliator should be. What we propose simply delivers the services that parents want. Turning now to Amendment No. 58, again we recognise the vital importance of resolving disputes between parents and schools and parents and LEAs as quickly as possible. This is particularly important where a child has special educational needs. This is the very reason we are seeking to place a duty on all LEAs to establish informal arrangements for preventing and resolving disputes where they occur. Far from slowing down the process, we would expect the new services to speed up the resolution of disputes. This will ensure that we minimise the disruption to pupils and to their families. The revised SEN code of practice will set out that the new informal arrangements for preventing and resolving disputes should seek to find solutions as rapidly as possible. I hope that, having heard these assurances, the amendment will not be pressed. Turning to Amendment No. 59, I can assure noble Lords that the Government recognise that it is essential that parents know that engaging in new, informal arrangements for preventing and resolving disagreements does not in any way compromise their right of appeal to the SEN tribunal. I know that we have referred to this point before in Committee, but I seek to emphasise it again. We believe that this is best achieved through regulations. I am happy to give an assurance that we will use the regulation-making powers provided for in Clause 8 and Schedule 7 of the Bill to require LEAs to inform parents about their arrangements for preventing and resolving disputes, and that if parents take advantage of those additional services it will not affect their entitlement to appeal to the tribunal in any way. LEAs will also need to inform parents of the statutory time limit for lodging an appeal and that dispute resolution can run alongside the appeals procedure. We also envisage that Chapter 2 of the revised. SEN code of practice will reiterate the need to inform parents about how the arrangements will work and that they do not affect their right of appeal. I hope that having heard my reassurances, Amendment No. 59 will not be moved. Lastly, the effect of Amendment No. 60 would be to place a duty on an LEA to provide the new arrangements for preventing and resolving disputes to parents who have exercised their right to send their child to an independent school. That would place an inappropriate burden on the LEA to provide a service where the LEA has no direct involvement in the education of the child. The Government recognise that, where a parent has exercised their right for an independent school placement for their child, it would not be appropriate for an LEA then to be asked to pay from the public purse for a service to that parent in relation to the new arrangements. The Government recognise that the new arrangements for the prevention and resolution of disputes should be available to parents whose children have been placed in an independent school by a statement and the LEA is either funding the place in full or in part. The responsibility of the LEA in those circumstances is clear. But where parents have exercised their right to pay for an independent school place for their child, they should not then be covered by the new arrangements. Their relationship with the school is a private matter and the Government are reluctant to interfere in that. That is why I ask that the amendment be withdrawn.
Lord Pearson of Rannoch
Before my noble friend rises to reply, I think I should say to the Minister that he has not quite got the effect of Amendment No. 60 correct. If he refers back to Amendment No. 21, which was moved by me in our last consideration in Committee, he may find that helpful. There are a number of special independent schools which are not approved under Section 342 and which clearly should be in this process if the object of the exercise is to speed it all up and move things forward more smoothly before the tribunal stage is reached.As usual, I declare an interest in that my daughter went to a special independent school that is not an approved school under Section 342 and therefore, unless my noble friend's amendment is accepted, all those schools would be excluded at this stage of the procedure by the wording of the Bill as it stands. I do not know how many there are, but there are probably at least 50 in the country that are really good schools— helpful to local authorities and to the whole process.
I was going to come in on a slightly different tack, because I also believe that the Minister did not answer the specific point of the amendment. This section of Clause 3 is about a resolution procedure. The need for the resolution procedure, which I support, is to try to resolve, where possible, any tensions between the parents and/or the schools or recipient bodies which will be receiving a child with special educational needs.One reason for tensions between the LEA and the parents may be that the LEA has prescribed one kind of placement and the parents have chosen something different. The parents may well have disapproved of a school named in the statement. They may have preferred a city technology college which the LEA did not support, a pupil referral unit, or a place in a maintained school. They may also have preferred an independent school. If that dispute is to be resolved, any party to the difficulty should be involved in the resolution. The Minister said that the amendment would give parents a right to go to an independent school of their choice. No, it would not. The amendment is about resolving a dispute; it is about the LEA giving its reasons why a particular choice or preference of the parent is not appropriate. As well as the parents having a right to argue their case, it is important that the school named by the parents should have an opportunity at least to be part of that process. My amendment would give no right to anybody to dictate which school they go to. It would simply give parents a right to be part of the resolution process. It seems quite extraordinary that every other type of school is mentioned. We have said from the outset that we believe that there should be no "no go" areas when looking for the appropriate placement for a child with special educational needs. We should look right across the educational sector, covering maintained and independent schools. No schools should be excluded. A parental preference for an independent school could be a conspicuous cause of tension between the parent and the LEA. The school should not be denied the right of representation in the resolution procedures. I hope that the Minister will discard his speaking note on the amendment and will answer the particular point about parties being excluded from the resolution procedure. I am not talking about a right to go to a school that is not of the LEA's choosing.
Lord Davies of Oldham
Let me clear up as best I can the issue of definition that the noble Lord, Lord Pearson, addressed to me. The Section 342 approved schools are non-maintained special schools. They are covered by the new arrangement, so we were not in any way excluding them from the general reconciliation procedures.I listened carefully to the case that the noble Baroness, Lady Blatch, put forward. When parents and the LEA are dealing with a dispute about the allocation of a school and the arrangements to be made, both those parties are covered. The independent school would be part and parcel of such discussion. The arrangements would be limited if the dispute occurred between the LEA and the school. The issue is straightforward. I am talking not about what the noble Lord, Lord Pearson, said about Section 342, but about any independent school. The issue with regard to the independent school would be worked out during the process of conciliation. If the parents and the child have decided to remain outside the state supported local authority sector, our contention is that when there are disputes between parents and the school about the proper provision for the child, it would not be right for the conciliation procedures of the local authority to be drawn down. Clearly, the amendment presented by the noble Baroness would bring such procedures into play in those circumstances. That is what I was seeking to resist and constitutes my explanation for the amendment not being acceptable.
That is not my reading of what the Bill states here. My understanding of the purpose of Clause 3 is that a local education authority must make arrangements with a view to avoiding or resolving disagreements with parents of children in its area. The dispute is between the parent and the local education authority, the reasons for which can be many and varied. For example, in the specific case that I am addressing with my amendment the LEA may wish to make one kind of amendment when the parent has expressed a preference for another. The 1993 Act and the 1996 Act provided that parents' preferences should be given some priority. The only exception is where the LEA believes the parents' preferences to be inappropriate or where they can be superseded by some other provision that meets the special needs of the child. Obviously cost would be taken into account in such a case. This is a matter to be resolved between the LEA and the parent. Where the parent believes that appropriate provision for his or her child is in an independent school not named by the authority, the independent school should, in that particular dispute, be given the option to be known as a relevant school. The resolution of the dispute might involve the parents' preference being agreed to. However, the parents' preference may not be agreed to. Nevertheless, the school in question—the one to which the parents wish their child to go—should be contained within the list. That confers no rights apart from the right to have the school represented in any resolution dispute procedure.
Lord Davies of Oldham
I am grateful to the noble Baroness for clarifying the matter. It was clear to everyone on the Committee apart from me and I apologise for my slowness in appreciating it. I accept the argument that she puts forward; namely, that where the dispute is between the parent and the LEA it is entirely right that the procedure is brought into play if the issues cannot be resolved through straightforward discussion. The amendment is open to the possible interpretation that where a dispute exists between a parent and the independent school attended by the child, that dispute could be brought back to the LEA's procedures for conciliation and reconciliation. I want to obviate that. I consider the amendment defective because of that interpretation. I shall, however, look again at today's discussion. I certainly accept the first point that the noble Baroness outlined.
The Minister seems to have ended on a high note as he began when dealing with my amendment, which I am delighted to withdraw. I had not appreciated the great ambitions of the Government, on which I congratulate them. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendments Nos. 55 to 60 not moved.]
Lord Morris of Manchester
had given notice of his intention to move Amendment No. 61:
Clause 3, page 4, line 44, at end insert—
("(9) In the arrangements made under this section with respect to a dispute arising under section 316, the local education authority must make provision for the child's views to be taken into account having regard to the child's age and maturity.").
The noble Lord said: In the absence of my noble friend Lord Ashley who is unable to attend today's meeting of the Committee, I speak on his behalf in not pressing the amendment at this stage. Thus I shall not move the amendment.
[ Amendment No. 61 not moved.]
Clause 3 agreed to.
Clause 4 [ Compliance with orders]:
moved Amendment No. 62:
Clause 4, page 5, line 5, at end insert ("and no prescribed period will be later than 6 months after the date on which the order was made").
The noble Baroness said: Amendment No. 62 concerns delay and timescales. It will be essential for the tribunals to remain impartial while accepting the need to seek the best outcome for the individual child. However, over time tribunals may become ever more aware of and sympathetic to the financial or other constraints experienced by a local education authority. In turn, those financial or other constraints may constrain the timetable of the tribunals' decisions.
I do not wish to sound too cynical about the work of the tribunals, because I believe that they do a very good job. However, it seems to me that the reason outlined should not be a reason for delay. If there were a specified period for the implementation of the tribunals' decisions, no such constraint need arise. The child's parents, the school and the local education authority would then be on an even playing field.
My amendment calls for a time limit of six months. I should like to be flexible about that. If the Government find that six months is too short a timescale, I shall be prepared to consider other suggestions. However, it is important that the principle of having a timescale should be agreed to. I beg to move.
Baroness Sharp of Guildford
I support Amendment No. 62 and speak to Amendment No. 63. The issue in Amendment No. 63 is very different from that in Amendment No. 62. Amendment No. 62 is about the timescale; Amendment No. 63 is about compliance.As things stand, if the local authority does not comply with the tribunal, it is left to the parents to take the local education authority back to the tribunal and to secure compliance. The initiative lies very much with the parents. This can involve the parents, therefore, in seeking further legal advice, possibly even an appeal to the High Court with all the emotional stress and financial expense that that involves. Amendment No. 63 seeks to put the onus on the local education authorities not only to comply with the tribunal decisions within a given period of time but also to put the onus on the LEA to provide evidence of compliance in a written letter stating that they are in compliance with the requirements of the tribunal. They are not doing so satisfactorily. It still leaves the onus on the parents to go back to the tribunal but at least the LEA has produced some evidence that it is genuinely prepared to sign the letter. Few chief education officers would be prepared to sign such a letter unless they were in compliance with the requirements of the tribunal. That is why we put forward the amendment.
Amendments Nos. 62 and 63 deal with compliance by LEAs of orders made by the special educational needs tribunal.Amendment No. 62 will require that the regulations to be made under Clause 4 should prescribe that the timetable for compliance with SEN tribunal orders should never exceed six months. The regulations to be made under Clause 4 will be informed by detailed consultation that has already been undertaken on this issue during late 1999, with a wide range of interested parties including parental and voluntary groups, LEAs and others. The consultation put forward suggested timescales for different types of orders. Respondents supported the introduction of specific timescales for implementation of SEN tribunal rulings and were clear as to the need for them. We are still considering the consultation responses but I can set out our provisional plans on timetables. Taking account of views expressed during consultation, we envisage that the likely timescales for orders, such as making or amending a statement which is the most time-consuming, will not exceed five weeks. In some cases, orders will have to be carried out to a shorter timetable; for example, starting the assessment or reassessment process where we envisage the timescale being no more than a month. We also intend to require that reinstatement of a statement shall take place within a week, while seeking to maintain a statement shall be carried out immediately or on the LEA's proposed date. These are demanding timetables but they take account of views expressed during the consultation exercise. We have sought to balance the wishes of parents for speedy compliance with tribunal orders with the practicalities for LEAs of complying with the orders. The timescales were also informed by the views of the SEN tribunal itself on how long LEAs would realistically need to comply with an order. It must be remembered that when the tribunal comes to make an order there will normally have been a substantial amount of work already undertaken. For example, an LEA would have 20 working days, once it had been notified by the tribunal of an appeal, to submit its comments on the appeal if they wished to oppose it. On average, a tribunal decision is now made in just over four months from when it receives an appeal. That reflects an increase in tribunal efficiency since it was first established when the time was over five months. I should like to make the point, however, that this efficiency of the tribunal is not at the expense of parental appeals. It would be quite wrong if it were to be. Of the 1,196 decisions made in 1999–2000, over three-quarters—78 per cent—involved the tribunal upholding some or all of the parents' cases. It is unnecessary to require on the face of the Bill a six-month limit for complying with tribunal orders, as that will be substantially in excess of the longest period we envisage requiring under the regulations. Turning to Amendment No. 63, the aim is to ensure that LEAs comply with orders made by the tribunal when it finds in favour of the parents following a parental appeal. However, LEAs will be under a legal duty to comply with such orders within a period which will be prescribed by regulation. To impose that confirmation requirement upon LEAs will not provide any additional safeguard for parents and children, but would impose an additional administrative burden upon the tribunal which would be responsible for ensuring that such confirmation was received and then processing it once it was received. Clause 4 ensures that LEAs will have to comply with SEN Tribunal orders within a specified time. We do not believe it should then be for the tribunal to start adopting a policing role and to follow up LEAs' compliance with individual decisions. There are other ways of ensuring compliance, including the ability of the Secretary of State, or the National Assembly in Wales, to investigate complaints from parents. There is also the work of Ofsted and the Audit Commission in their general inspections of LEAs. In the light of what I have said, I hope that it will be possible for the noble Baroness, Lady Blatch, to withdraw her amendment.
I am grateful to the noble Baroness for that full answer. There is nothing between us in what we are trying to achieve. There is no doubt that there have been delays in the system which are unacceptable to parents, and sometimes for a very good reason. LEAs and/or the people involved with the resolution of such applications for a place for a child with special needs present many problems, and sometimes cost or resources are a problem.We are building on previous statutes and trying to minimise the need for delay. I am grateful to the noble Baroness, Lady Blackstone. I shall read carefully what she said. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendment No. 63 not moved.]
moved Amendment No. 64:
Clause 4, page 5, line 5, at end insert—
("( ) Regulations under this section. so far as they relate to Wales, require the agreement of the National Assembly for Wales.").
The noble Baroness said: I beg to move.
On Question, amendment agreed to.
Clause 4, as amended, agreed to.
Clause 5 [ Unopposed appeals]:
The Deputy Chairman of Committees (Viscount Simon)
I advise the Committee that, if Amendment No. 65 is agreed to, I cannot call Amendment No. 66 due to pre-emption.
moved Amendment No. 65:
Clause 5, page 5, line 16, leave out ("withdrawn") and insert ("granted to the parent").
The noble Baroness said: This is a probing amendment. If a local education authority notifies the tribunal that it no longer opposes the parent's appeal, surely the parent has won his appeal. Measures should be taken to implement the requirements of the parent as made in that appeal.
The subsection says that the appeal should be treated as having been withdrawn, but surely that cannot be right. The parents have not withdrawn their appeal—they have won it, and their wishes should now be respected. If the appeal is considered only to have been withdrawn, the LEA could legally still pursue a course of action contrary to the parent's wishes, which may even result in a re-application to the tribunal. If the LEA withdraws its opposition to the appeal then, ipso facto, it has to agree with it. I beg to move.
Does the noble Lord, Lord Lucas, wish to speak?
I shall listen to the answer first.
Amendment No. 65 would treat these kinds of cases as decisions upheld in favour of the parent. The SEN tribunal already extensively reports its appeal decisions in its annual report, which provides a great deal of detail about the speed with which the tribunal deals with appeals, the number of appeals decided or withdrawn, the type of appeal heard, the outcome of appeals and the types of disability most frequently dealt with.The tribunal provides that extensive breakdown of information not as a statutory requirement, but because it gives a clear record of the number of the appeal cases heard and the tribunal's ability to deal with them in a timely and effective way. The tribunal keeps its statistical systems under review and will look at its current arrangements once the Bill is enacted. That includes the best means of distinguishing between types of withdrawal—for example, whether a withdrawal under Clause 5 should be treated in the category of "successful appeals". From its extensive experience with withdrawn appeals, the tribunal already estimates that the majority of withdrawn cases arise from concessions by the LEA to the parent. The amendments would result in cases withdrawn on a formal basis under Clause 5 being treated differently from those in which something similar happened under a more informal arrangement. If an amendment is withdrawn, there is no opposition so there is no difficulty and the tribunal will make the order that the parent wants. As the tribunal is already considering the issue, I hope that the noble Baroness feels able to withdraw her amendment.
I am not sure whether the noble Baroness meant that the Government are considering agreeing to an amendment along the lines that I suggested. Any case that a parent takes to the tribunal will clearly be against the LEA. If the LEA concedes or withdraws its opposition, the parent has won the appeal. It is almost mealy-mouthed not to recognise that it is not just a question of withdrawing—it is not a technicality. The parent has successfully appealed. That should be properly recognised.
Clause 5 provides that the LEA has to comply. The issue of winning is, in a sense, irrelevant. What matters is that there is compliance as a result of the LEA accepting what the parents' case is.
That strengthens my case, which is that if the LEA has either caved in or withdrawn its objections, or given concessions that now successfully satisfy the parents, the parents have won the case. They have taken the case to tribunal; before it is heard the LEA found some way of appeasing the parents, and so the parents have been successful. It seems to me to be more than a technicality. It has not just been withdrawn; it has been resolved successfully for the parents.
Perhaps I may interrupt for a moment. If I was a parent and I received a note to say that the appeal had been withdrawn, I would believe that I had lost.
That would be a very odd response from a parent. If the LEA conceded that the parent had a case, there is no need to pursue it in a tribunal. It is only withdrawn in that sense; it is not withdrawn in the sense that they have been told that they have not got what they are claiming is required. In a way we are dancing on the head of a pin here. I do not think there is much between us and it is simply a matter of whether we regard a case that is resolved outside the tribunal as one that has been won through the tribunal. It has not really because it was resolved before the hearing of course. In a sense, the parents had their argument heard and the concession was made. I do not think there is much between us.
The noble Baroness is right; we are dancing on the head of a pin. This is a cost-free amendment. On the basis that if we are given a little we become quite mellow in our protestations, it might be one worth conceding.The case can only be successful if the parent in the first place had a grievance which they had taken to the tribunal, and the very fact that it has been resolved before it had to be heard by the tribunal means that it was a success on the part of the parents. I should like to think that the Government would reflect on making a very minor change to this Bill. It would be helpful to receive a letter that the parents had been successful, rather than that the application had been withdrawn. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendment No. 66 not moved.]
Clause 5 agreed to.
Clause 6 agreed to.
moved Amendment No. 67:
Before Clause 7. insert the following new clause—
Objectives Concerning Academic Progress
(" . 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: I know that Amendment No. 67 is somewhat contentious, but in speaking to my amendment I want to refer back to one of the most inspirational visits I ever paid to a special school—and I have visited quite a number in my time. It was a school in the North East, and if I could possibly remember its name I would do it the honour of naming it for the record.
I visited that school, which took children in from around the age of 18 months to two years old right through to the top end of secondary school—16 years—and in special circumstances even young people who were over the age of 16 years. I do not think I have been more impressed with a school. They regarded the recording of progress being made by children, from whatever stage they had started, and setting targets tailor-made to each individual, as being absolutely paramount.
If I had the time I would relate how I watched a group of very tiny children, who were just old enough to sit on a chair, progress from not being able to sit on a chair [they simply could not support their bodies— to sitting on a chair; washing their hands; wiping their faces; using mirrors—all being observed through one-way glass windows so there was not too much intrusive adult activity in the classroom—right through to a young person who was completely braced in an upright position but nevertheless was following a fairly academic programme. I remember that it coincided with the early introduction of the national curriculum. The head of the school insisted that the school should use the national curriculum as a structured way of ensuring that young people were part of mainstream education in the wider sense and that even a young person working towards level 1 in key stage 1 was part of that structure. There was provision in the system which could act as an impetus for a child moving progressively upwards.
Having said that, in a "Dear Colleague" letter written on 18th December last year the Secretary of State 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".
Amendment No. 67 is about that. Progress for all children is important, however slow and limited by the ability of the children. I referred to small children progressing from being unable to sit on a chair to sitting on a chair. We are not talking about reading, writing, history and geography, but about physical and skilful progress. Those children would not have been making that progress if it had not been for the work of that school with children of all ages including young people doing GCSEs and moving on to A-levels.
At present no published information or statutory requirement exists to demonstrate that special needs provision or funding results in confirmed, measurable educational attainments for the pupils concerned. The clause is intended to remedy that defect and ensure that special needs provision and funding are more accountable in terms of achieving higher standards and, possibly, the removal of funding or provision if progress is not made.
I know that the provision will be contentious but it builds on the sentence in the Secretary of State's letter that progress is important for all children and that for children with special educational needs encouragement to make progress is very important. As we all know, many of these children could thrive better if there were this impetus to make progress.
I am also reminded of something that I heard the Secretary of State say on a television programme. I cannot paraphrase him directly, but he appeared to make the point that while he has done exceptionally well—and we would all agree that he is a remarkable man for the way in which he has coped with his blindness—there are many other young people with special needs, particularly sight impairment, who could do a great deal better. The Secretary of State wishes schools to do better by these children and my amendment would include a provision to that effect in the Bill. I beg to move.
Lord Davies of Oldham
The noble Baroness's assiduous attention to the statements of the Secretary of State is matched only by my own. I am grateful that he has been quoted in evidence today.There is not a great deal between us with regard to the amendment. We agree that all teaching requires the setting of objectives and monitoring how well a child is progressing against them. That has been emphasised in relationship to the progress of educational reform under this administration, as well as being an issue covered by the previous government. The question of how good teaching is achieved is common to all children. I would be chary of identifying specific aspects of good teaching in relation to special educational needs. We all recognise the specific teaching which is required at times but not the principles upon which good teaching is effected. I emphasise that the current code of practice advises schools that individual education plans for children at stages two and three of the code should include targets to be achieved at a given time and monitoring and assessment arrangements. I note the comments of the noble Baroness about the particular school which impressed her. It is doubtless by no means the only example in the country but we all draw inspiration from our direct experience of good teaching in good schools. It is one of the joys of being involved in educational policy issues. I was grateful to the noble Baroness for her illustration. She identified the exact practice that we would wish to see followed in all schools. The code that is established to advise on how individual education plans should be developed is the basis on which progress by the child is to be identified and is a measure of effective teaching by the teacher. The noble Baroness also referred to literacy. We all recognise the enormous emphasis that has been placed by the Secretary of State and indeed by the whole Government on improvements in literacy. That extends to students with special educational needs as well as to the rest of the population. The amendment that the noble Baroness has put forward identifies exactly the basis upon which the code means to express good teaching. That applies right across education in this country.
I am grateful to the noble Lord for his reply. It would still be helpful to see exactly what the code states on these matters. It would seem from a number of the answers that have been given this afternoon that the code is fairly well written. It would be a huge help to have it before us on Report or at Third Reading. It would be yet further reassurance that what we are striving for in these amendments will be honoured in the code of practice. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [ Duty to inform parent where special educational provision made]:
moved Amendment No. 68
Clause 7, page 6, line 3, 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, and if the parent objects to such provision being made as being unnecessary or inappropriate. the dispute shall he resolved as provided for in section 332B of this Act. and until it is resolved, the special educational provision shall not be made.").
The noble Baroness said: In speaking to Amendment No. 68, I shall also speak to Amendments Nos. 69 and 70. Section 317 of the 1996 Act makes provision for children with special educational needs but who are not subject to a statement to be given the special educational provision that they need in the school in which they are currently registered. Whilst I agree with that, we should seek to cater for all children with special needs—a point that has been made again and again in our debate—including the many who have such needs even if they do not have a statement.
However, no provision was made for the parents of the child to be informed that such special provision was to be made. Nor were the parents asked for their agreement before it was made. The outcome is that such special provision can be made without the parents' knowledge. If a child who falls short of needing a statement has special learning difficulties and a school intends to make special provision for that child, it should be the parents' right to know that that is happening. We all know that in the best of schools, and certainly in those with which I have been involved, that would happen automatically. Parents would be consulted; they would be counselled if necessary and they would be given a full explanation of why the school had decided that special provision was required. I am, therefore, requesting that there should be something on the face of the Bill to indicate that it should be regarded as a right for parents to know that.
Clause 7(1) of the present Bill seeks to remedy this deficiency but only in so far as to inform the parents after the event, once the child is already receiving the special educational provision. That must still be wrong. My amendment, therefore, provides that the parents of a child at any school should be informed of the intention to make special educational provision for perceived special educational needs before such provision is made and that the parents shall have the right to object to its provision and that any dispute resulting from such objection will be resolved by the dispute procedure in Clause 3.
The existing provision for informing the parent after the event can remain in the Bill along with the additional subsection, which would at least act as a fallback should some mistake be made and prior notice not have been given, on the basis of better late than never.
Amendment No 70 says:
"that the parent's consent is being sought before such provision is made, and that in the event of a dispute with the parent. it shall he resolved according to the procedures in section 332B of the Education Act 1996."
In two other places in Clause 7 it is presumed that special provision has already been made or is being made for the child. These two amendments are consequential on my previous amendment that the provision to meet special educational needs must be proposed but not yet implemented to trigger the provisions of Clause 7, and that the parents must have the opportunity to appeal if a special educational needs provision is being proposed and they disagree with it. I beg to move.
Lord Davies of Oldham
I must confess to having some real anxiety about the implications of these amendments. I fear that, however unintentionally, they might hamper schools, nursery education providers and pupil referral units from making speedy responses to children's newly identified special educational needs. They would also affect the exercise of teachers' professional judgment.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. The SEN code of practice emphasises the importance of schools and parents working together so that children's special educational needs can be met effectively. Clause 7 furthers that objective by ensuring that parents are fully aware of the SEN provision that is being made for their children. However, it cannot be right that parents should be given a veto over the SEN provision that schools make for their children. The amendments would at least delay the SEN provision that children needed and could result in that provision being denied because, for whatever reason, the parents said that they were not prepared to have it. The amendments presuppose that in every case the parents have a more fully informed and well-founded understanding of their children's educational needs than do the teachers. We must look to teachers and schools, working in accordance with the guidance they receive from the SEN code, to identify children's special needs and intervene as soon as possible to ensure that difficulties can be addressed, if possible, before they become deep-seated. If some parents objected to their children being identified as having SEN because they feel there is some stigma attached to it, we would look to teachers and schools to work with parents to address those concerns and reassure them that the provision was in the best interests of their child. Amendments No. 68 and 70 refer specifically to Clause 3. Arrangements under Clause 3 are a significant advance for dispute resolution. They would be available to the parents of children in certain schools and maintained nursery schools even without Amendments Nos. 68 and 70. However, the arrangements under Clause 3 would not be binding and if cases under Clause 7 were dealt with under the Clause 3 arrangements, there would be a danger that either the school or the parent would refuse to take part or refuse to comply with the outcome. In instances of dispute over Clause 7 cases, we expect and recommend that the parents address their concerns to the schools first, where we expect the vast majority of cases to be resolved. Because of these anxieties, I hope that the noble Baroness, Lady Blatch, will withdraw her amendments.
The Minister referred to children in special referral units. All I can say is that, if children are in a special referral unit, they would already be treated differently; they would already have special provision made for them. I cannot conceive of any situation where a child has been referred to a special referral unit without the parents knowing about it.If I might speak personally for a moment, I can remember a particular school to which my two older boys went when they were very small where we received a monthly report on how our children were doing. They received two marks in the month; one for achievement and the other for effort. So we knew if we had a bright child who was not working very hard or a child who was not so academically able who was working his socks off. One way or another, we knew how much effort was being made by the children. In the course of those little reports we received once a month from the school, which was a very good primary school, we were also told if our children were withdrawn from class for special reading, or if they had special numeracy classes, or if they were being checked for behaviour. Those little snippets of information were important for us as parents to know, rather than leaving it until one annual general meeting when all parents attend only to discover that for the whole of the year a child has been receiving special treatment for reading, numeracy or whatever it might be. Therefore, one part of the aims and objectives of my amendment is to make sure that, where a child is having learning difficulties, parents know about it. It seems quite wrong for schools, with all the best intentions in the world—they are clearly well-intentioned if they are making special provision for a child within a school— to allow that to be done without the parents' knowledge. The second part of the amendment causing great anxiety for the Minister is the right of a parent to object. "Object" may be taken too strongly; but it gives the parent the right to challenge why their child is being treated in that way; why their child is being withdrawn for special classes. It allows the school to give an explanation as to why that is and to make a case for it. And it allows the parent to be reassured about what is happening. All I am saying is that it gives way to a form of informal resolution procedure which allows a dialogue to take place between the parent and the school to ensure in the interests of the child that, whatever provision is being made for the child, it is appropriate to the needs of the child. I believe I was taken a little out of context by the Minister in the way he responded to these amendments. However, they are important amendments and I shall return to them. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendments Nos. 69 and 70 not moved.]
Clause 7 agreed to.
Clause 8 [ Review or assessment of educational needs at request of responsible body]:
moved Amendment No. 71:
Clause 8, page 6, line 45, after ("body") insert ("or the parent of the child").
The noble Baroness said: In moving Amendment No. 71 I shall speak also to Amendments Nos. 72, 73, 74 and 77. Other amendments in this group are in the names of the noble Baroness, Lady Darcy de Knayth, and the noble Lord, Lord Lucas—Amendments Nos. 75, 76, 78 and 79.
Amendment No. 71 provides for the responsible body—that is, the head teacher or governors—to ask for an assessment or reassessment of the child. We should also make provision for the parents to be able to ask the local authority for an assessment or a reassessment of their child and my amendment allows the parents to say that they believe their child qualifies for an assessment.
The purpose of Amendment No. 72 is that the subsection allows an interval of six months between the request for an assessment and the assessment being made. I am afraid that is too long. I should like to cut that down to three months, which should be time enough for the local authority to get their act together. Six months, depending on the time of year—certainly if it is six working months—can mean a very long wait indeed for a child's educational needs properly to be assessed, let alone be met.
Amendment No. 73 is that, as the subsection stands, it remains open to the local education authority to reject the request as being unnecessary. They cannot know whether an assessment or reassessment is necessary until they have assessed the child. Therefore, our amendment would require the LEA to make the assessment if a request had been made. Since such a request is to be made by the responsible body—or under the previous amendment, the parent—it is not likely to be frivolous. It is likely to be in the interests of the school and the parents to ask for an assessment only if, with their knowledge of the child, they deem it to be necessary.
On Amendment No. 74, the Minister needs to explain to me the phrase
"before deciding whether to comply".
Surely the local education authority must comply and make the reassessment. There is no question of whether to comply. My amendment would require the parents to be informed, as in the rest of the subsection, before the LEA began the assessment, rather than before the LEA considered whether to begin the assessment.
Amendment No. 77 would remove the words "decide whether to", because the local education authority has to comply. The amended subsection (5) would require the LEA to comply, but only after the 29-day period for parental representation had elapsed. I beg to move.
Baroness Darcy de Knayth
I shall speak to Amendment No. 75. I am somewhat confused because the noble Baroness, Lady Blatch, is asking for the parents to ask for assessment. I thought that was already specified in Section 329A of the 1996 Act—although I may be quite wrong.My briefing says that when a parent requests a statutory assessment, the law imposes a six-week time limit on an LEA to answer yes or no. My amendment would impose a time limit on an LEA's response to a request from a responsible body for a statutory assessment. It is essential that there is a time limit for an LEA's response if a request comes from a school or a professional, such as an educational psychologist. Without a time limit, situations such as the one that I shall briefly describe—and which IPSEA says are very common—will continue to arise. The parent of a child with special needs rang IPSEA for help. A request for assessment had been sent to her LEA by the head of her child's school and the educational psychologist. There had been no response by the LEA, despite the request having been made over nine months previously. IPSEA helped the parent make her own written request, which then imposed a six-week deadline for the LEA to reply. However, the missing nine months could not be retrieved which, in the life of a child, is a hugely long time. I warmly welcome the Bill's introduction of a right of appeal for a parent when an LEA turns down the request of a school or a professional for a statutory assessment. Before turning down the school's request for assessment, the LEA must send a proposal to the parent. The six-week deadline follows the sending of the proposal. However, that will not get the whole thing to kick in at the beginning. There could still be that nine-month delay, because there is no time limit on the period between the LEA receiving the request from the school or professional and it sending the parents the notice of the proposal to assess. There is no early trigger, so delays could still continue without the new deadline proposed in Amendment No. 75.
Amendment No. 76 in this group inserts the words
before "29". Suppose, under subsection (3), the local authority were to say that the specified period were to be two years, which it certainly could under subsection (4), because the only restriction is that it has to be longer than 29 days. That would seem to be an excellent way for the local authority to delay the procedure until everyone had forgotten about it.. As the noble Baroness, Lady Darcy, said, we need some restriction on the ability of the LEA to spin things out. I cannot imagine any circumstances under which parents need more than 29 days to consider their rights under this section, and 10 days should be adequate in most circumstances when things are bubbling along reasonably nicely. Likewise, if the local authority has submitted a notice under subsection (3) and the parent says, "Yes, by all means go ahead", why should the local authority then have to wait 29 days, or however much longer is specified, before it can do anything about it? Everybody is agreed; they are all sitting around waiting; but subsection (5) makes them sit around until this arbitrary time period has elapsed. I do not see why. If the parent agrees, the matter should go ahead straight away. The last of my amendments would allow the responsible body to appeal under subsection (8)(b). Since those are the people who have raised the matter in the first place under this section, I do not see why they should not be able to appeal."10 days nor more than"
One of the points raised relates to the length of time matters can take. Again there was a great deal of supporting anecdotal evidence The length of time involved in getting help has been an issue which has always dogged anyone who did not fit into the main stream.We must have some better idea about the length of time. I instinctively worry about a provision which allows the time to be extended because such a provision has been abused in the past. A good reason for doing nothing is that it does not fit in with your plan. The general thrust of these amendments is valuable.
Lord Davies of Oldham
I begin by indicating that Amendment No. 71 is unnecessary. It gives parents as well as schools the right under this clause to refer children to local education authorities for statutory assessments. They already have that right under Section 329 of the Education Act 1996. Presumably Amendment No. 71 has to be viewed in the light of Amendments No. 72, 73, 74 and 77, which we are considering in this group.Amendment No. 72 would mean that the statutory interval between requests for assessment of children from schools and parents would be three months instead of six. The effect of Amendments Nos. 73, 74 and 77 would be that LEAs would always have to comply with requests for assessments, whether they came from schools or from parents. Neither the proposal that the interval between requests for assessments following a previous assessment be reduced, nor that depriving LEAs of the right to decide whether to assess, can be accepted. 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. For children whose previous assessments had led to statements, this amendment would mean that their parents could request reassessments within two weeks of receiving the final statement. Were three months to be accepted it would hold out the prospect of a constantly revolving door of requests for reassessment which LEAs would have to deal with. Surely the Committee would regard that as being an unreasonable use of LEA officers' time. 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. LEAs, in consultation with parents and schools, 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 judgement to decide whether an assessment is necessary. Of course, if they decide not to assess, either after a referral from schools or from parents, parents have the fundamental right to appeal to the SEN tribunal. Turning to Amendment No. 75, we understand and sympathise with the aim behind the amendment of the noble Baroness Darcy de Knayth. It is to ensure that parents are informed of the LEA's decisions on whether or not to assess a child's special educational needs following a request from a school within the same six-week time limit as if the request had come from the parent. In fact, the consultation on the SEN regulations which has run alongside the consultation on the revised SEN code of practice proposed changes to the regulations which would ensure that this would happen. Changes to Schedule 26 of the 1996 Education Act to be brought about by Schedule 7 to the Bill already provide for regulations to prescribe time limits on the serving of notices related to the assessment process, including any notices under Section 329A. We will use this to ensure the same six-week time limit applies to school requests for assessment as applies to parental requests. On Amendments Nos. 76 and 78, I sympathise with the intention of these amendments, which is to ensure that parents know whether LEAs will assess or not with all due speed after a request has been made by a school. However, they are unnecessary. The amendments seek to limit the specified time in which parents can make representations and submit evidence and allow for parents who do so before the specified time to tell the LEA it can get on with deciding whether to assess straightaway. However, the crucial point for parents is not when the LEA starts making the decision but when they can be assured they will hear the decision. As I say, we have consulted on amendments to the 1994 SEN regulation which would ensure that LEAs will have to inform parents of their decision within the same six-week period as if the request had been made by the parents and we fully intend to put those changes into effect. This will ensure that parents are given the information they need within a reasonable period. It is the finishing date we are seeking to emphasise, not the starting date. Lastly, Amendment No. 79 would introduce a new group of appellants to the tribunal process of children with SEN—schools which have made a request for an assessment. I sympathise with the argument that there are some parents who may not feel capable of appealing to the tribunal and would prefer schools to do so on their behalf. However, whereas in the case of an initial request for assessment parents may never have dealt with the LEA before and may well benefit from this being done for them, by the time it comes to decide whether to appeal to the tribunal, parents would already have been in contact with the LEA when making representations or submitting evidence, even where the school had made the request. Parents who would still value assistance could of course turn for support to the strengthened parent partnership arrangements we are putting in place. Against this background, therefore, I ask those Members of the Committee who tabled these amendments to recognise that the crucial issue with regard to the timescale has been and shall be addressed under our arrangements, and that the amendments therefore are not necessary.
Baroness Darcy de Knayth
I am grateful to the Minister for that reply, and am satisfied on Amendment No. 75.
Returning briefly to Amendments Nos. 76 and 78, do I understand from the reply of the noble Lord, Lord Davies of Oldham, to the noble Baroness, Lady Darcy de Knayth, that the "specified period" mentioned in lines 18 and 19 is in fact covered by the regulations which he was describing, and that therefore there is some limit on that specified period? Is it the case that it is not a period which the LEA is free to make however long it wants, but that there will be statutory limits on what that specified period will be? That is what I understood the noble Lord, Lord Davies of Oldham, to say, and I see he is nodding his head in agreement.What is the problem with my amendment to Clause 5? Suppose we have a position where the local authority has said, "Right, suspended for 29 days"; "This is what we are going to do"; "Do you want to make representations?" The parents then say, "Wonderful"; "No"; "At last"; "Go ahead". The local authority then has to wait 29 days doing nothing, twiddling its thumbs with no process taking place at all, merely because it is not allowed to do anything until the end of the 29-day period. What is the purpose of that?
Lord Davies of Oldham
On the first point, I can offer full assurance to the noble Lord that his interpretation of the position is exactly right. On the second point, what is being considered here is the proper notification and rights of parents. The reason for the 29 days is obvious. Ten days might seem reasonable for the average parent at home, but account has to be taken of holiday periods and people being abroad and so forth. That is why 29 days are stipulated. There is no question of the local authorities electing to, "wait and see". There is no reason why they should prepare and engage in consultations on other views with regard to such a case. In most circumstances, such preliminary work would not be wasted. The implication of the position is clearly there.
Suppose I am the parent of a child and for whatever reason the local authority comes to me under this clause asking to proceed with making a statement. I immediately agree and send them a letter signed in triplicate, witnessed in any way they wish. Under subsection (5) the authority cannot decide to go ahead with making the assessment until 29 days have expired. It cannot even decide to pass first base. It cannot call anyone in; it cannot get the assessment made; it cannot take advice; it cannot make a date with the educational psychologist. It is forbidden, under subsection (5), from doing anything at all until 29 days have passed even when everyone is agreed that things can proceed. I simply do not see the purpose of that. Nothing is happening in those 29 days, except delay.
Lord Davies of Oldham
I share with the noble Lord a hatred of the concept of any unnecessary delay when the signals have clearly gone forward for action to be taken. Obviously, we are concerned about the balance of parental rights in this respect but I shall look closely at the point just made and respond to it in due course.
That was a useful exchange. I am grateful to the noble Lord for agreeing to reflect on the point raised by my noble friend. However, when the Minister responded to my first amendment saying that it was otiose, he said that parents had that right already. They definitely have the statutory right to ask but they do not have the right for the assessment to take place. Reading on, subsection (3)—the subject of another of my amendments—contains the words,
that is, the authority has the right not to accede to a parent's request for an assessment. My point is that, if parents are sufficiently concerned to want an assessment made of their child's learning abilities—possibly but not necessarily leading to a statement— because they perceive that the child has disabilities in terms of learning, then an assessment should be made. A local authority cannot simply refuse since, until they have made an assessment of a child, they are not in a position to say whether a child does or does not have learning disabilities. I do not, therefore, understand the response of the noble Lord. I hope that I am correct in assuming he said that they should have the right to ask for but not necessarily the right to have an assessment."Before deciding whether to comply";
Lord Davies of Oldham
The position must be taken in the context of the general obligations of the local authority and school in terms of providing education for the child. Although a request in those terms may be made, the local authority already has an obligation to ensure that that child's interests are being advanced as far as possible in their education. So it is not a question of them turning their back on any basis for assessment. Far from it: the child is involved in the educational system and the authority is in a position where it can begin to reach some judgment on the effectiveness of the education presented to the child. That is the context in which I was making the suggestion. I recognise that it is in the context of the subsequent amendments; part of a package. I am possibly being somewhat over precious in addressing those particular remarks to the amendment when it is part of a general package. However, I have explained to the noble Baroness why we are seeking, quite properly, to reserve to the education authority and to practising professionals proper rights with regard to educational judgments in respect of children in circumstances where parents might not be in total agreement with the decisions being advanced.
It would not be unusual for there to be instances where parents are in disagreement about the provision made for their child. However, parents may think that their child has special needs but there is no obligation on the authority even to explain why it is not going to do an assessment. It has the right to say, "We do not believe that your child needs an assessment".There needs to be something somewhere either on the face of the Bill or certainly in the code of practice to state that a parent should receive serious consideration where he is sufficiently concerned— perhaps unnecessarily—that a child has special educational needs which are not being met within the system. If there cannot be a compulsory assessment, there ought to be an obligation on the local education authority to explain why that is. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendments Nos. 72 to 79 not moved.]
moved Amendment No. 80:
Clause 8, page 8, line 9, at end insert—
("( ) an independent school.").
The noble Baroness said: This measure allows those responsible for a school at which a child is already a pupil to request of the local education authority an assessment or reassessment to see if that child has special educational needs. Under our earlier amendment, which allows the parent also to make such a request, it should be open for any child at any school to be given such an assessment if those responsible for that child deem it to be necessary. The relevant provision excludes those at independent schools. My amendment adds independent schools. The Government as a whole are responsible for all children, whether they go into or out of the private sector. If parents believe that a child has special educational needs, they ought to have the right as taxpayers and local council taxpayers to approach their local education authority for an assessment. I beg to move.
Lord Davies of Oldham
I largely agree with the case that has been put forward by the noble Baroness and will be pleased to consider this issue further.
I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[ Amendment No. 81 not moved.]
Clause 8 agreed to.
moved Amendment No. 82:
After Clause 8, insert the following new clause—
Independent Assessment Of Educational Needs By Local Education Authority
(" . 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.
Lord Davies of Oldham
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.
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]:
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.
Lord Davies of Oldham
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.
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.
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
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.
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.
Lord Davies of Oldham
This may be a convenient moment for the Committee to adjourn until tomorrow at 3.30 p.m.
The Deputy Chairman of Committees (Viscount Simon)
The Committee stands adjourned until Tuesday, 30th January at 3.30 p.m.
The Committee adjourned at four minutes past eight o'clock.