HC Deb 22 October 1981 vol 10 cc439-46

Lords Amendment: No. 4, in page 6, leave out lines 7 to 14 and insert—

"shall serve on the parent of the child concerned—
  1. a copy of the proposed statement; and
  2. a written explanation of the effect of subsections (4) to (4C) below.
 (4) If the parent on whom a copy of a proposed statement has been served under subsection (3)(a) above disagrees with any part of the proposed statement he may, before the expiry of the appropriate period—
  1. make representations (or further representations) to the authority about the content of the proposed statement;
  2. require the authority to arrange a meeting between him and an officer of the authority at which the proposed statement can be discussed.
 (4A) Where a parent, having attended a meeting arranged by a local education authority under subsection (4)(b) above, disagrees with any part of the assessment in question he may, before the expiry of the appropriate period, require the authority to arrange one or more meetings under subsection (4B) below. (4B) Where a local education authority receive a request duly made under subsection (4A) above they shall arrange such meeting or meetings as they consider will enable the parent to discuss the relevant advice with the appropriate person or persons. In this subsection— "relevant advice" means such of the advice given to the authority in connection with the assessment as they consider to be relevant to that part of the assessment with which the parent disagrees; and "appropriate person" means the person who gave the relevant advice or any other person who, in the opinion of the authority, is the appropriate person to discuss it with the parent. (4C) In this section "appropriate period" means the period of 15 days beginning—
  1. in the case of a request under subsection (4)(b) above, with the date on which the statement mentioned in subsection (3)(b) above was served on the parent;
  2. in the case of a request under subsection (4A) above, with the date fixed for the meeting arranged under subsection (4)(b) above; and
  3. in the case of representations, or further representations. under subsection (4)(a) above—
    1. with the date mentioned in paragraph (a) above; or
    2. if one or more meetings have been arranged under the preceding provision of this section, with the date fixed for the last of those meetings."
Dr. Boyson

I beg to move, That this House doth agree with the Lords in the said amendment.

The amendment brings us back to an issue—I shall not say that I feel nostalgic about it, although the autumn leaves are falling outside—which we dealt with in the spring. It relates to the amount of information that is given to parents. I shall come straight to the point and not beat about the bush. It is the question of whether parents should have total access to the records.

Last night when I got home I read through all that we said in Committee on the subject. The argument went back and forth. My hon. Friend the Member for Exeter (Mr. Hannam) spoke a great deal. Today we have only two "e"s. In Committee we had three "e"s—Ely, Eccles and Exeter. Now we are down to two. I do not know whether events elsewhere have taken certain hon. Gentlemen away, but we are down to two-thirds of the "e"s on this occasion.

At the end of the previous debate we were discussing the subject of the named person. I believe that it was the hon. Member for Birkenhead (Mr. Field) who withdrew the amendment on that occasion. There was much discussion on both sides about whether the named person was the person who could actually have access to all the material and submit it to the individual so that the individual was not prevented from having any of the information that he desired. My hon. Friend the Member for Exeter told us what he did when he received two letters from officials in his constituency, one which was marked "Private and Confidential" and one which was open to the winds of time, and of the difficulties that were involved.

In the meantime, the Bill has gone to the Lords and there has been further thought, as a result of which this amendment was tabled. I do not expect everyone to agree with it, but I shall give the reason for it. The intention was to go as far as possible to allow the parent to have maximum information.

Before I come to the amendment, I wish to repeat where I stand and where I believe the Government stand. I accept that there is a difference of opinion on the matter. It is an issue on which good men can divide with passion on each side. In a society where we want everything to be as open as possible there is danger in keeping anything back. I remember the tale that was related by the hon. Member for Birkenhead of what happened in the East End of London. It was about a mother who was called slothful and who was dying of some form of cancer, or something of that nature. The opening of the records would reveal a mistake that could be carried on. We appreciate that.

However, there are arguments on the other side. If there is to be .open access to records, information will not be written down. This consideration has always influenced me. In many cases open testimonials went out of use in the teaching profession, although people pretended to use them, took them up and then paid no attention to them. References came in, and when they were not allowed, I shall not say that there were secret phone calls, but by accident contact was made between people who had never spoken before and certain topics were discussed. A kind of black economy of information builds up.

If everything had to be written down and made available, we all know that many professionals would object to private statements, as they saw them, being passed around for all and sundry to see.

4.45 pm

So what does one do? Does one move to the named person? Incidentally, this is the longest debate that we have had on the Bill without the named person raising his head. What does amendment No. 4 do? When parents disagree with any part of a draft statement—I underline the words "any part of a draft statement"—they have the right to require the local education authority to arrange a meeting with a local education officer, and if the parents are not satisfied with that meeting, at which they can ask "What does this part of the statement mean and why is it put in?", they can have further meetings with a person or persons, the professionals qualified to discuss considerations arising from the statement.

Largely, they are the people who have written the statement. They can see the adviser of the local authority, the first contact, and they have 15 days after that in which to object. If they are still dissatisfied, they can inform the adviser that they want to see the professionals concerned and arrangements must be made for someone on the professional side to meet them and give them more details. In that case, again, they have 15 days. I mention the 15 days because that subject was discussed on Report. The 15 days goes from the last meeting.

I am sure that by now we all know our Warnock. We have regularly thrown quotations from it at one another. It is a sign of old friendships. The preservation of some form of non-open access, however small, is not something that we put in. Warnock itself had problems in this connection. The report says on page 56, 4.23: A second type of personal folder is needed for the results of professional consultations and sensitive information given in confidence about a child's social background or family relationships. This should be a confidential folder. It would not be complete without significant medical information provided by the health authority. We seem to have gone much further than that towards open access. Once there are two files, no one knows what goes into the second file. There is the statement, and the parent can challenge it by seeing someone from the local education authority, and he can go further and cross-examine the people in making it. As far as possible, frank and fair information shall be passed on.

The Department is considering what sort of guide rules should be put down for the statement. In my view, general guidelines are necessary as to the content, if the Bill is to achieve what we hope. It will contain full information on the child's medical, psychological and educational needs and other advice as to how those needs are to be met. So on one side we have the medical, psychological and educational needs, and on the other side how those needs can be met.

At that stage the parent can put his views, ask for interviews, go to local appeal, and finally to the Secretary of State. A whole battery of arrangements is available. There is the local authority with the tribunal, then there is the appeals tribunal, and then direct appeal to the Secretary of State.

Several points arise from the debates that we had on the Floor of the House and upstairs in Committee. The statement will be a comprehensive document. Once the parents have received that comprehensive document, they will have the right to question and probe the professionals on the advice that they were given.

There is one important aspect here that I wish to stress. Last night when I read our debates on Second Reading, in Committee and on Report, I noticed that reference was made to a lawyer. I believe that it was put to my right hon. and learned Friend the Member for Runcorn (Mr. Carlisle), when he was speaking to one of the amendments on Report. An Opposition Member—I should not be surprised if it were the hon. Member for Birkenhead, if my memory serves me right—raised an important issue. He asked whether, if my right hon. and learned Friend was stating a case in a court of law and he lost the case because of secret information being given to the judge and jury at the last moment, when he thought that he was doing well, he would think that that was fair and just. My right hon. and learned Friend said that we would continue to look into the matter.

In this case the information that goes from the local education authority to the tribunal must be available to the parent. No secret information can go to the tribunal which is not available to the parent. The statement of the local authority to the tribunal as to why the statement has been written that way and why, as part of the statement, it has recommended special educational provision, in whatever educational establishment it has, must be available to the parent.

We have gone as far as we can—or as far as we believe we should go. There is a difference of belief about open access. We have gone much further than was recommended originally in Warnock. We have gone much further than we said we would go in Committee and on Report.

On that basis, I trust that the House will agree with the Lords amendment.

Mr. Soley

I welcome any increase in the availability of access to records. We have made much heavy weather of this matter in the past, perhaps unnecessarily. I do not doubt that there are cases in which it is necessary to keep great confidences, but they are far fewer than we sometimes think.

From my experience as a probation officer, I know that largely we used to keep from people information about the background of children who were up for adoption. Practices changed in the 1970s, and we began to tell adopting parents far more about the background of the child they were adopting. We then found that all our horrendous fears previously did not materialise. They related to the sort of case of a child born to a mother who had convictions for prostitution, when we felt that that information should never be passed on to adopting parents. Parents are now commonly told of such backgrounds, and, to my knowledge, that never causes problems. Sensibly handled, it is far more productive to deal with matters in that way than to have them discovered later by accident, or whatever, which can be devastating.

This matter is particularly important because so many statements about human behaviour are judgmental. Some are based on fact. To some extent one can draw up facts about what particular form of behaviour is being practised and is causing problems, but many statements are purely judgmental. In those circumstances it is important that information is available to the parent so that it can be challenged when behaviour is different, for cultural, class or other reasons. For that reason alone, I would welcome a far wider access to information on background.

Mr. John Hannam (Exeter)

The whole question of confidentiality of reports is vexed. I suppose that with this amendment we have gone nearly to the point of full disclosure. Therefore, I give it a guarded welcome. There ought now to be an improvement in the relationship between professionals and parents. The amendment opens the way to what will ultimately, inevitably, become full access to reports.

My hon. Friend the Minister was accepting the principle of access, but, in the end, denying us that final full availability for the parent. Nevertheless, if a parent has an unsatisfactory interview with an over-protective or obstructive professional, mistrust will increase, or suspicion will develop. If a parent speculates about what is in a report—there could easily be judgmental matters in it about which he or she would be very concerned—and is not allowed to see it, unnecessary distress can be caused.

In the long run, I feel that we shall finish up by providing full access to reports, as is done in the United States of America. The American system works extremely well. On 30 July a group of seven professionals in deafness in the United States attended the debate in the other place. Afterwards they wrote to Baroness Young, the Minister of State, on this matter. I should like to quote from their letter of 18 August: We are professionals in the field of deafness and since the United States' education laws concerning the confidentiality of records were referred to we would like to share our perception of the experience of our country on this matter. The benefits of open records have outweighed the possible hindrances and many of the concerns expressed have not proved to be problems. Our experience has been that open records have been in the best interest of the child for the following reasons:"—. we should remember that these are professionals saying this—

  1. Parents have become more involved in the education of their child. They have become more responsible for the total development of their child and participate more fully in this outside the classroom;
  2. A relationship of trust has developed between parents and professionals, and,
  3. Information in files is substantiated by facts. Care is taken to express clearly the meaning and implications of technical data so that it is understandable and useful to both parents and professionals.
We are expressing our views as individuals working as professionals in the field of deafness. I believe that denial of access to reports is an infringement of parents' rights and can prevent them from fulfilling their duties of ensuring that their child receives a suitable education. They will certainly not know, for example, whether to appeal against a decision under clause 5. There is a small element of risk in openness but it is far outweighed—as is justified in the letter that I have just read—by the risks of secrecy and the risk of distrust growing up between professionals and local education authorities and the parents, and the risk of children being assessed on the basis of inaccurate or unsubstantiated reports.

The amendment does not give parents the absolute right to see reports, although there is nothing to prevent the professionals from giving all the information to parents. This is a move in the right direction, nearly to the point at which full access is provided. I feel that we shall get full access at some stage and that most people engaged on the Bill feel that it will be an advantage. I welcome the amendment, but I do so very guardedly because it denies that final access which I should like to see.

Mr. Field

I welcome the amendment. Last week I went back to my old school for speech day. I was sitting on the platform, minding, I thought, my own business. I was slightly taken aback when the headmaster said that he had consulted the files that had been kept on me by my school when I was a pupil, and he said that he thought that he ought to read out the relevant information to the company so gathered. He was a kind man. Clearly, he read out only part of the information. However, what I thought was interesting was that these were files which I did not know had been kept. I did not know that they were still in existence. The two pieces of information that were most relevant about my schooling were not contained on the files. It seemed to me to reinforce all the points that we made in Committee and on the Floor of the House about the dangers of having files to which people do not have access.

Before we get too carried away about how major the change has been with the Lords amendment, perhaps I could concentrate the attention of the House on what is listed in the amendment. Subsection (4B) talks about enabling the parent to discuss the relevant advice with the appropriate person or persons". There is nothing in the amendment that says that the parent will have access to information. Bearing in mind our discussions in Committee and on the Floor of the House, that seems something of a disappointment. For example, the right hon. and learned Member for Runcorn (Mr. Carlisle), in responding to the debate, was very clear about the dilemmas that we face on this issue and to which the Under-Secretary referred in his opening comments. On 10 June the right hon. and learned Gentleman said: We welcome the widest possible provision of information but we must accept the fact that there may be occasions when the professionals do not feel that they are in a position to give that information."—[Official Report, 10 June 1981; Vol. 6, c. 477.] "Information" was the operative word there, not advice. Therefore, I ask the Minister to consider that point.

I also ask the Minister to consider the point made by his noble Friend Baroness Young when their Lordships were considering this amendment. She said that a number of people would give full advice but that some would withhold information for the reasons that the Under-Secretary stated in his opening comments. However, she went on to say: and many could be encouraged to do so."—[Official Report, House of Lords, 30 July 1981; Vol. 423, c. 796.] How will the Government make people change their attitudes and how will they encourage them to respond and to give further information? Will that be one of the issues contained in the regulations? When I listened to the Minister, I learnt something new—that if all the procedures fail and parents go to a tribunal, they will have access to all the information that the tribunal has for consideration of that case. That is an important statement.

Where will the force for that statement come from? I hope that it will not just consist of a mention in Hansard. Will the Government also consider including that in the regulations?

5 pm

Dr. Boyson

A circular of guidance will be issued concerning the application of this shortly-to-be-enacted Bill. The hon. Member for Hammersmith, North (Mr. Soley) mentioned the ethnic minorities. We shall be able to cover that in the circular of guidance. The circular will make it clear that such help should be given to non-English speaking pupils. Another issue that is more difficult—but which we shall consider—concerns those who speak English but who are baffled by the procedure, of which there is a great deal. Mention was made of contact with voluntary societies for advice.

I do not wish to go into the argument about the exposure of full information, or full-frontal exposure, because splendid and brilliant interventions would follow. I should then have to go away and think and give a reply after deep thought and prayer. However, we must take the professionals with us. That is important, because if we do not do so we shall not have the information on which to make a proper statement.

I am informed, for example, that on checking a child could be found to have a hereditary handicap which meant that the man the child thought to be his father was not. It may be asked how many times such incidents occur. I accept that exceptions can always be found with which to shoot one another down. However, I had to defend myself by raising such a point. An example that is less significant, but equally important, concerns the case in which a child's problems arise from a current marital difficulty. I was impressed by the hon. Member for Birkenhead (Mr. Field) and by his line of thought. The hon. Gentleman would say that the disclosure of that information would bring such a matter out into the open. I still remember and turn over in my mind the illustration that he used in Committee. I am speaking not just as a Government spokesman. We should go as far as possible, but there are difficulties as regards the professionals and as regards odd cases. However, the arguments that I heard in Committee moved me.

Reference has been made to discussing the "relevant advice". Such relevant advice is obviously based on information. The parent has every right to probe and to ask why the advice was given. In Committee, we discussed the fact that parents have a right to be present at such investigations. They do not just come in at the end. The House has ensured that parents are included at a much earlier stage than previously.

When we issue the circular of guidance and consider the framework for the statement, we shall reflect on how far we can advise local authorities. The emphasis of the House was that maximum information should be given. There is no difference between hon. Members about that. As my hon. Friend the Member for Exeter (Mr. Hannam) will agree, we have come a long way, if not the whole way. We shall see what we can do to continue to stress the needs of the ethnic minorities. The acceptance of the Bill and its support from those who believe that parents should be able to gain the maximum disclosure must depend on whether local authorities accept not only its letter but its spirit. We shall do all we can to communicate that.

Mr. Field

Will the Minister further clarify the point about the circular of guidance? Is he thinking of including in the document phrases such as "in normal circumstances the Secretary of State will expect all information to be given to the parents"?

Dr. Boyson

As far as I know there is no draft of the document. Therefore, I am merely thinking aloud. However, I do not think that the Secretary of State would have any objection to including that statement.

Mr. Soley

If we are to ensure that members of ethnic minority groups are not unfairly put into special educational categories, is it not implicit that we must collect statistics and analyse them?

Dr. Boyson

I had thought that the hon. Gentleman and I were getting on well. However, I agree with the hon. Gentleman. That is part of open disclosure. Historians will agree that it is funny that when a society suddenly moves towards greater disclosure in one direction, it should shut the door in another.

I once innocently gave a false piece of information to the House. I am sure that no one would deliberately give such information to the House. The information related to the attitude of the National Union of Teachers the collection of statistics. The debate in which the information was given occurred some time ago, but the hon. Gentleman has given me an opportunity to put the record straight. Many teachers object to the collection of statistics. They say that things become more obvious.

The argument about statistics goes backwards and forwards. The hon. Member for Hammersmith, North as an ex-probation officer and I as an ex-head teacher are well aware of that. I said that the NUT opposed the collection of statistics. However, I received a pleasant and cheerful letter from the NUT pointing out that, whatever some of its members might say, its policy was that the collection of statistics and the maximum amount of information were advantageous. I am delighted that the hon. Gentleman raised that point today as it has enabled me to put the record straight. I have felt guilty about it ever since then.

Question put and agreed to.

Lords amendment No. 5 agreed to.

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