(" . 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?