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Special Educational Needs Tribunal: Establishment Of Conciliation Service
29 January 2001
Volume 621

(" . 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.

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I would like to support this amendment. As the noble Lord says, it avoids double disruption to a child's schooling.

4.15 p.m.

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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
"must provide for the appointment of independent persons".
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.

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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.

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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.

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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.

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moved Amendment No. 36:

After Clause 1, insert the following new clause—