HC Deb 10 June 1981 vol 6 cc457-62 7.15 pm
Mr. Mark Carlisle

I beg to move amendment No. 11, in page 3, line 32 after first 'may', insert 'after consulting the child's parent'.

Mr. Deputy Speaker

With this it will be convenient to take the following amendments:

No. 12, in page 3, line 34 at end insert— '(2) The local education authority shall notify the parent in writing of their decision and of the reasons for making it. (3) The parent may appeal in writing to the Secretary of State within three months of notification of the decision. (4) On an appeal under subsection (3) above, the Secretary of State may, if he thinks fit, direct the local education authority to convene a special review committee to re-appraise their decision.'. No. 18, in page 5, line 14, leave out 'to reconsider their decision', and insert 'to convene a special review committee to reappraise their decision'.

Mr. Carlisle

I acknowledge that the amendment is the result of an amendment to clause 3 moved in Committee by the hon. Member for Eccles (Mr. Carter-Jones). He was concerned about consultation with parents. I am grateful to him for raising the matter and enabling us to table the amendment.

Clause 3 re-enacts clause 56 of the 1944 Act, which provides for the ability of the local authority to provide education other than in a school. It states: 3. If, in relation to any child in their area who has special educational needs, a local education authority are satisfied that it would be inappropriate for the special educational provision required for that child, or for any part of that provision, to be made in a school, they may arrange for it or, as the case may be, for that part of it, to be made otherwise than in a school. Therefore, we are dealing with a child who is identified as having an educational need which requires provision to be made for it.

The learning difficulty is likely to be a disability that would prevent that child from being able to attend school. The disability may be permanent or of a nature which may lead to a statement being provided under clause 7. In that case, full consultation would have taken place with the parents.

A local authority may sometimes wish to make educational provision other than at a school for a child whom it assesses as having an educational need, when a statement under clause 7 would not have been appropriate because, possibly, the educational need was temporary, such as an illness which required that the child should be taken to hospital or should convalesce at home after he had been ill. Whether the child was at home or in a hospital which did not have a special school, the local authority should be prepared to provide for that child's education.

If it is intended to make a statement under clause 7 for a child, before the local authority can carry out the necessary assessment it may wish to provide for it. In those circumstances it is felt right that, when the local authority proposes to make such a provision, the parent should be consulted.

The intention of the amendment is to provide for that consultation with the parent before arrangements are made. It is consistent with the intention of the Bill to encourage greater participation of the parents in those matters. That was not in the Bill as drafted and it should have been. I believe that it improves the Bill, and I am grateful to the hon. Member for Eccles for having raised the matter in Committee.

Mr. Beith

Amendments Nos. 12 and 18 are linked with amendment No. 11 for discussion, but I did not expect the Minister to refer to them until I had spoken.

Amendment No. 12 refers to education for the most severly handicapped children who are ruled not suitable for education in either an integrated or a special school—in other words, those children likely to be educated in hospital. The amendment seeks to import an appeal procedure into the decision that they will not be able to go to a school of any kind.

In principle, every parent should have the written explanation that the clause requires of the LEA's decision, so that it has to set out the principles of its decision and parents have the opportunity to appeal against it. The Government have been keen to extend appeal procedures and parental choice as widely as possible, and parents of handicapped children feel strongly that they should have the same rights. The right must, surely, apply to parents of a child who they believe could be educated outside hospital at a special school and want to challenge the local authority's decision that the child should remain in hospital for its education. Such parents would rightly feel deprived if they were not given an appeal procedure.

In Committee the hon. Member for Birkenhead (Mr. Field) stimulated an interesting discussion about appropriate and inapproprate school premises, which revolved around the lifts and stairs at Highbury Grove and whether a wheel-chair-bound pupil could cope with the school. The discussion was a reminder that in words such as "appropriate" repose a local authority's arbitrary powers. It is sometimes too easy for a local authority to make a simple and arbitrary decision without having to reconsider whether it could, by even limited means, make a special school appropriate for a child by taking on an extra member of staff, by recruiting a part-time member of staff, or by providing a facility at an ordinary school.

If it is too easy for a local authority to make an arbitrary decision, the pressures that we want to generate through the Bill will not be applied to get children into schools. The pressures must apply as strongly to a child whom we would like to get out of hospital and into a special school as to a child who would like to get out of a special school and into an ordinary school. I am therefore keen for the Minister to reconsider an appeal procedure. I am not tied to the form of the amendment. There are alternatives, but somehow we should seek to extend the appeal procedure.

Amendment No. 18 does the same thing in a different case. It deals with the assessment of whether a child needs special education. There is provision in the Bill for the Secretary of State, if he sees fit, to direct the local education authority to reconsider its decision. I presume that he is most likely to do that in response to an appeal from parents who believe that their child is wrongly required to have special education facilities.

Under the amendment local authorities would be required to convene a special review committee to reappraise the decision, under the direction of the Secretary of State. The clause merely provides that the same people will go through the process again when the Secretary of State tells them to, which is not ideal. It is preferable to use another specially constituted body.

Again, the analogy, if not the precise detail, is with the Education Act 1980, under which a local authority can set up an appeal machinery distinct from an education committee. We argued at the time about the merits of the procedure, but the Government are convinced of it and have sought to implement it in practice. Surely we can have an analogue of that procedure in this instance. If the Government believe that the local education authority in its normal form is not sufficient to reconsider the school placement of an ordinary child, they must recognise that the same consideration applies to an assessment decision. If the local authority is required to reappraise a decision, a review or appeal committee should be involved. In both cases we seek to extend a principle to which the Government are firmly wedded.

Mr. Wigley

Is there not a converse side to the hon. Gentleman's argument? In some instances LEAs may not be providing special education in hospitals where it is needed. Should there not be an appeal machinery for parents who want their children to have such an education?

Mr. Beith

Hospital education of handicapped children is important, but I am not sure that I follow the hon. Gentleman's argument. I am suggesting that a placement decision should be able to be the subject of appeal, by which I mean a decision on whether a child should be educated in hospital or in a special or normal school. The question whether facilities are available to educate a child who remains in hospital is important, although I am not sure that it lends itself to an appeal procedure in the same way.

If there is no appeal procedure to determine placements, there will be less pressure on local authorities to ensure that the facilities are adequate. If, on appeal, a local authority has to defend a decision to leave a child in hospital, it will have to say that there are adequate facilities in the hospital and that the child would be better and more appropriately educated there than in a special school. The local authority would have to satisfy itself about its arrangements with the AHA and make sure that the facilities were available. The existence of an appeal procedure would be a stimulus to make sure that there was adequate provision. I agree with the hon. Member for Caernarvon (Mr. Wigley) that hospital education, as on a number of occasions in the past, could become the cinderella of the three, where least provision is made.

I ask the Minister to reconsider the desirability of building an appeal procedure into the provisions.

Mr. Andrew F. Bennett

There are two issues at stake in this group of amendments. The first concerns children who need temporary educational provision outside the school system, and the second those who may require long-term provision. I have been pressed by several educationists in Stockport to probe the question of temporary provision.

I make no complaint that my new clause 10 was not selected, but it attempted to make it clear that, where we are dealing with the short-term problem, although there should be consultation with parents—which is what the Government suggest—the authorities should be able to get on with providing the education without being involved in an appeal. A youngster may have an accident and find himself in hospital for several months. He should be able to continue his education there. An appeal procedure would be inappropriate. Everyone would have to do the best they could in the circumstances.

My new clause 10 covered the case I gave of a pregnant girl. It would be appropriate for such a girl to receive tuition at home long after it was appropriate for her to attend school. Again an appeal procedure would not be right. By the time an appeal had been heard the circumstances would have changed. I can think of many other instances.

The clause is right if it is dealing only with temporary circumstances, but if it is to be used in cases where, for instance, a child is permanently in hospital, the appeal procedure would be appropriate. I hope that the Minister will tell us that the clause will be used only in temporary circumstances, and that he will assure educationists that they can continue to make the day-to-day, practical provisions that they see as essential, without an appeal procedure. However, where children are permanently hospitalised there should be the same right of appeal as if they were in an educational establishment.

7.30 pm
Mr. Carter-Jones

As a result of my representations, we have an improvement to a clause that I did not intend. Let me explain what I was getting at.

If a child cannot receive education in a special or ordinary school because of his health and has to be educated in hospital, he would, in reality, come under the medical consultant of the hospital. A clinical judgment would be exercised. The medical consultant would decide whether the child was to receive education. That was my point. I did not want the consultant simply to decide that a child should have no education or, say, only one hour a day for medical reasons. That was my line of argument.

Fortunately, the amendment improves the Bill, although it does not go as far as I wished. As one cannot interfere with the clinical judgment of a consultant, I had hoped to provide a check and balance so that the parents had the right to be told by the local education authority and the consultant what should be done for the child while in hospital. It was a mix of educational and medical need. As consultants are often kings, I thought that they should consult the parents regarding their decisions. Nevertheless, I accept the amendment.

Mr. Mark Carlisle

I am sorry if we have not done what the hon. Member for Eccles (Mr. Carter-Jones) wishes us to do, but I am glad that he finds what we have done an improvement.

I shall deal first with what the hon. Member for Berwick-upon-Tweed (Mr. Beith) said about amendments Nos. 12 and 18. With great respect, I think that there is a misunderstanding. This was pointed out by the hon. Member for Stockport, North (Mr. Bennett). I fear that I did not make the position clear. It seems to me that the clause inevitably deals with temporary stays in hospital, or temporary provision for education other than in a school. I agree entirely with the hon. Member for Stockport, North that, whereas parents should be consulted in such cases, it would not be appropriate for an appeals mechanism to operate in that time scale.

The hon. Member for Berwick-upon-Tweed was concerned with what he described as the most serious cases, in which the local authority decides that the child cannot be educated in an ordinary school or even in a special school, but that his needs are such that he must be educated somewhere other than in a school. He was anxious that the parents of such a child should have the right to appeal.

That situation is already covered. In a long-term situation of that kind the child would undoubtedly be covered by clause 4 as a child for whom the authority would be required to determine special educational provision to be made. Once the child comes into that category, the authority is required to make an assessment, in which the parents must be involved. The authority may make a statement stipulating, say, the hospital, in which case the parent has the right to appeal against the statement, or it may choose not to make a statement, in which case the parent has the right to appeal against refusal to make a statement. It seems to me, therefore, that in the long-term situation envisaged by the hon. Gentleman a right of appeal would inevitably exist as a result of the procedures under clauses 5 and 7.

Finally, if for some reason the authority failed to make a statement, the parents would have the right to request an assessment under clause 9. Having requested the assessment, they could themselves set the appeals procedure in motion so that the appeal could go through the committee and eventually to the Secretary of State.

I think that subsection (2) of amendment No. 12 about notification of the parents is therefore met, although we have not said that it should be in writing. Subsection (3) assumes a different situation and does not arise.

Whereas a case may be returned to the local authority by the Secretary of State with a request that it reconsider its decision, I believe that it would be wrong to lay down in statute the form that that reconsideration should take, which would be the effect of amendment No. 18, which suggests a special review committee to reappraise the decision. I say that because probably the most appropriate method of reconsideration in most cases would be not the setting up of a new review committee but a reassessment of the child's needs by the professionals in the light of the Secretary of State's comments.

Mr. Wigley

I followed with interest the Secretary of State's cross-references to the parents' right to appeal for an assessment under clause 9. Will he confirm that, as local authorities follow the 1970 Act with regard to education in hospitals, appeals may be made in relation to provision of a full range of education in hospitals, including the 55 per cent. of hospitals that provide no educational facilities for children under the age of five?

Mr. Carlisle

I am not sure that I could answer that with certainty at this moment, but I shall ensure that the hon. Gentleman receives an answer. If it does not arrive in time for debate on Report, it will certainly be in time for him to review the matter before the Bill goes to another place.

I hope, therefore, that the amendments in the name of the hon. Member for Isle of Ely (Mr. Freud) will be withdrawn when the time comes. I think that we have achieved the desired effect through our own amendment and the present wording of the legislation.

Mr. Deputy Speaker (Mr. Bernard Weatherill)

I do not think that that arises. We are debating Government amendment No. 11, with which the other amendments were linked.

Amendment agreed to.

Back to
Forward to