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House of Lords Hansard
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29 January 2001
Volume 621

(" . 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.

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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.

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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.

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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.

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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.

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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.

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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?

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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.

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I am very grateful, that is an offer I cannot refuse. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

5 p.m.

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moved Amendment No. 43:

After Clause 1, insert the following new clause—

"Statements of Special Educational Need