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Special Educational Provision: Interests Of Child
29 January 2001
Volume 621

(" . 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.

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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.

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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.

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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.]

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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.

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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.

6.15 p.m.

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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,

""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".
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,
"an independent school named by the parents of the child".

I support the amendment.

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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."

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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.

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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.

6.30 p.m.

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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.

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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.

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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.

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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.

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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.

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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.]

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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.

6.45 p.m.

Clause 4 [ Compliance with orders]:

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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.

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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.

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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.

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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.]

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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]:

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I advise the Committee that, if Amendment No. 65 is agreed to, I cannot call Amendment No. 66 due to pre-emption.

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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.

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Does the noble Lord, Lord Lucas, wish to speak?

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I shall listen to the answer first.

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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.

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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.

7.00 p.m.

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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.

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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.

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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.

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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.

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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.

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moved Amendment No. 67:

Before Clause 7. insert the following new clause—