Education

HC Deb 05 November 2001 vol 374 cc43-63 5.10 pm

The Minister for School Standards (Mr. Stephen Timms)

I beg to move, That the draft Special Educational Needs Code of Practice, which was laid before this House on 23rd October, be approved.

Regulations made under the Education Act 1996, which were laid before the House on 23 October and referred to in the draft code of practice, provide the detail of the statutory requirements for assessments, statements and reviews of statements of special educational needs in England. Those consolidate the Education (Special Educational Needs) (England) Regulations 2001, the Education (Special Educational Needs) (England) (Amendment) Regulations 2001, and the Education (Special Educational Needs) (England) (Amendment No. 2) Regulations 2001, which themselves replaced the 1994 regulations.

We have been here before. On 10 July, I stood at the Dispatch Box to open a debate to consider a draft of the revised SEN code of practice. We had a lively and informative debate. Hon. Members will recall that, in closing it, I promised that the Government would reflect very carefully on the concerns that were expressed by a number of those who contributed, many on behalf of parents, about the guidance in that draft on quantifying the provision in children's statements of SEN.

As hon. Members will know, following the debate, we withdrew the then draft code of practice from Parliament to reflect on those concerns, and the concerns raised by Members in another place. We have made changes to deal with those concerns in the draft now before the House.

Mr. Patrick McLoughlin (West Derbyshire)

Can the Minister explain why he was voting for this measure and we were voting against it at the same time as his Department withdrew it?

Mr. Timms

In closing the debate last time, I made it clear that we would listen very carefully and consider very carefully the points that were made to us. That is what we have done. The version of the code of practice that is before us reflects the results of our deliberations.

In the debate on 10 July, it was clear that a number of hon. Members were concerned that the guidance on quantifying the provision in children's statements of SEN could be interpreted as encouraging vague statements. Let me make it clear that it was never the Government's intention to weaken the position of children with statements. The guidance in the previous draft made it clear that a statement should describe all the child's special educational needs clearly and in full; set out the main objectives that the special educational provision aims to meet; specify clearly and in detail appropriate provision to meet each of the child's needs; and describe the arrangements for setting shorter-term objectives for the child and any special arrangements for the annual review of the statement. It stressed the importance of the school's monitoring and evaluating the child's progress during the year. It placed new emphasis on the importance of the local education authority monitoring with the school the child's progress towards identified outcomes.

Mr. Tim Boswell (Daventry)

As the Minister knows, I have had a certain passing interest in these matters. Is it not in fact only because many local authorities' practice fell far short of the ideal prescribed or encouraged by all Governments that the argument and the controversy in relation to which he has now conceded the point has taken place? Is it not the fact that many local authorities either could not—or in certain cases would not—make adequate and specific provision that has brought this debate about?

Mr. Timms

First, I pay tribute to the close interest that the hon. Gentleman has taken in this matter over a long period and to the contributions that he has made to previous debates. Certainly, concerns have been expressed as to how the system has worked, although not exclusively in the aspects to which he alludes, and they have led to the need to revise the code of practice—hence the version that we are considering this evening.

All the advice in the earlier version of the code, to which I have drawn attention, is also included in the current version. The draft code, which we debated in July, advised that appropriate provision for each identified need should always be specified in clear, specific and detailed terms. It made it absolutely clear that LEAs must not have blanket policies such that provision is never quantified in statements—there have been some difficulties in that regard. Following helpful interventions during the debates in another place on the Special Educational Needs and Disability Act 2001, the section in the draft code on assessments was strengthened to make it clear that professionals giving advice can comment on the amount of provision that they consider appropriate for a child, and that LEAs must not have blanket policies that would prevent that.

The draft code makes it clear that provision in statements should normally be quantified in terms of hours and of starting arrangements, for example.

Mr. Phil Willis (Harrogate and Knaresborough)

While the Minister is dealing with paragraph 8:37 of the draft code, can he give the House an example to show where provision should not be quantified?

Mr. Timms

In a moment, I will give the House an example of when such provision might not be appropriate.

The draft code also recognises—as does the current code of practice—that there will be cases where some flexibility is required to meet the changing needs of the child concerned. A code of practice can never dictate the precise details of the provision to be made for each and every child. There must be some flexibility so as to respond specifically to the individual needs and circumstances of different children.

The hon. Gentleman asked me for an example. In the case of a visually impaired child in a mainstream school—an example to which I have referred in a previous debate—it may be that the child or the school require advice or help from a specialist teacher of the visually impaired, but it may make no sense to specify the number of hours in the statement. Alternatively, a minimum number of hours may suffice, if the time needs to fluctuate with the changing needs of the child, or their teachers, for support. Similarly, the child may need low-vision aids and information and communication technology equipment. As the child matures or curriculum requirements change, that provision might become out of date, in which case the specialist teacher, with the school, will identify more appropriate aids. I hope that that example enables the hon. Gentleman to see that there will be cases where it makes sense to be flexible about precisely how needs are specified in the statement.

Mrs. Eleanor Laing (Epping Forest)

Will the Minister confirm that that example represents an exception, not the rule, and that there will be flexibility only in exceptional cases?

Mr. Timms

I can confirm that we would normally expect the quantification to be in the statement. So that there is no confusion on that point, I reiterate the comments made last week in another place by my noble Friend Baroness Ashton: she pointed out that the word "normally" means that, in the majority of circumstances, we would expect to see provision in a statement quantified. In some circumstances there needs to be flexibility but normally we expect LEAs to quantify.

It is clear from the wording in paragraphs 8:36 and 8:37 of the draft code that LEAs should normally quantify provision in statements, but that there will be cases where some flexibility is required. It is equally clear that decisions must be taken on an individual basis by a careful assessment of the individual child's difficulties and the educational setting in which the child may be taught.

I have spoken first about quantification as it was the issue that most concerned the House, and I hope that I have provided reassurance on that point. However, changes have also been made that address other issues raised by hon. Members in July. First, the advice in chapter 7 of the draft code relating to children with medical needs clarifies that, where a child has medical needs that impact on his or her access to education, LEAs should consider whether there is a need for a statutory assessment by reference to the detailed guidance set out earlier in that chapter under four broad areas of need.

Secondly, the advice on school placements in chapter 8 now makes it clear that school governing bodies cannot refuse their school being named in a child's statement, but can only argue against it. The changes that we have made to schedule 27 to the Education Act 1996 ensure that schools are always sent copies of proposed statements before decisions are made about placements. That will place LEAs, schools and parents in a better position to consider and discuss placements at an early stage.

Thirdly, the draft code of practice and the associated regulations clarify that those who give advice can comment on the type of provision they consider appropriate if they wish, but they cannot, as now, give the name of a school. The draft code makes it clear that that should not, of course, pre-empt the parent's statement of a preference for a particular school or the LEA' s eventual decision about the school, type of school or education otherwise that it considers appropriate.

Issues were also raised in the earlier debate about the advice in the draft code of practice on LEAs' duties to identify children with special educational needs who may need statements. The draft code is clear on that. Indeed, it sets out new requirements for LEAs to publish their arrangements for identifying children with special educational needs from July 2002.

Mr. Andrew Turner (Isle of Wight)

The hon. Gentleman refers to LEAs taking the decision and parents expressing a preference, but will he confirm that the LEA has the same obligation to take into account the preferences of the parents as it has in any case involving a parent whose child does not have special educational needs?

Mr. Timms

Certainly, the LEA needs to give great weight to the representations received from parents. I am not quite sure what specific point the hon. Gentleman wishes to make, but perhaps he will catch your eye, Mr. Deputy Speaker, and we can return to the issue later, when I may be able to help further.

Mr. Willis

The issue should be dealt with the other way round. Will the Minister confirm that applications from students with statements of special educational need who transfer, for example, from year 6 to year 7 will be given preference over those of other children who may have selected a particular school as their first choice? In other words, is there an assumption that children with statements of special educational need will be necessarily given places in their first-choice school in preference to children without statements?

Mr. Timms

Yes, that is the case, although the hon. Member for Isle of Wight (Mr. Turner) was right to suggest that LEAs will need to take a decision that follows parents' preferences—but perhaps we can explore that issue further during the debate.

The draft code makes it clear that schools are expected to keep appropriate individual and whole-school records of children with special educational needs, including those with and without statements. Parents of children without statements have always been able to request assessments. Under the Special Educational Needs and Disability Act 2001, schools will be able to request assessments and have their requests considered in the same six-week time scale as requests from parents. Educational psychologists regularly liaise with schools about children who receive school-based provision for their special educational needs and alert LEAs to any child who may need an assessment. In practice, LEAs can fulfil their duty without the need for additional bureaucratic burdens to be placed on schools.

From January 2003, we will collect additional data, by LEA, on children with statements who are excluded from schools, so LEAs will know about those children. From September 2002, we shall ensure that any child who is excluded from school for 15 weeks will receive suitable full-time education. We expect LEAs to ensure that children with special educational needs who are excluded from school receive provision appropriate to their special educational needs.

The current code of practice has done much to improve the identification and assessment of special educational needs, but it can be improved. Teachers and LEAs have told us that the current code is too bureaucratic, that it does not focus enough on teaching and learning and that it does not reflect recent important developments in education.

We consulted widely on a draft code of practice last year, and most people favoured the main changes that we proposed, but further concerns were raised. We listened carefully to people's views on those issues and made a number of changes to the draft. In chapter 1, we have brought together the strategic planning functions of school governing bodies and local education authorities for SEN to make it easier for parents and others to know who is responsible for what.

In chapter 2, we have provided fuller guidance for LEAs on the services that they are expected to provide to parents through parent-partnership services and the authorities' arrangements for resolving disagreements with schools and parents. The guidance also sets out minimum standards.

In chapter 3, we have strengthened considerably the guidance on seeking and taking account of the views of children with SEN. Chapters 4,5 and 6 now give stronger support for the role of the SEN co-ordinator in helping governing bodies and head teachers to raise the standards of achievement for children with SEN and to recognise their need for support within the school.

The guidance on assessments in chapter 7 has been strengthened to clarify the terms on which LEAs should seek advice. It makes it clear that they should seek the views of the child, We have also enhanced chapter 8 on statements to highlight the accountability that schools and LEAs share for children with statements when funds are delegated.

The draft code of practice is intended to remove barriers to participation and learning and to raise the attainment of all children. Its key principle—that children with SEN should have their needs met—reflects the Government's view that providing effective support for such children is an essential feature of an effective school.

We support the greater emphasis in the draft code of practice on the early identification of children's SEN. Some £25 million will be available over three years to help LEAs and their early years development and child care partnerships to improve local provision for young children with SEN. A multi-agency working party will also develop guidance for health and education practitioners on a coherent approach to the early identification of need. It will provide support for children under two with special needs and for their families.

Mr. Roger Gale (North Thanet)

The Minister mentioned a figure that was pitifully low. He is aware that many of us think that a doctrinaire attitude is taken towards the placement of children in mainstream schools. That means that they may get a worse education at a higher price. Kent county council has calculated that, as a result of these provisions, it is likely to be able to pay for the identification of needs, but not to fund the meeting of the needs themselves. How on earth will local authorities pay for that?

Mr. Timms

I shall come to the point about inclusion shortly. It is an important matter, but I am confident that the Government's approach is right.

We support the greater emphasis on early identification. With the Department of Health, we are considering the educational implications of the introduction of newborn hearing screening where we are supporting a bank of training materials, activity in the next tranche of early excellence centres and support through SEN standards funds for 2002–03 to help early intervention. As children can have SEN at different stages of their school career—not just in their early years—the guidance in the draft code of practice on school-based intervention focuses less on procedures and more on improving teaching and learning.

We have reduced the number of school-based elements from three to two and cut the paperwork on individual education plans and annual reviews to free up time for teachers to concentrate on helping children to learn. That will be widely welcomed.

We have placed the voice of the child at the heart of draft code of practice. LEAs and schools are expected to seek and take account of the views and wishes of children with SEN throughout their school lives.

Partnership with parents is given a fresh impetus and greater emphasis in the draft code, which makes it clear that the parent-partnership and disagreement resolution services that LEAs are expected to provide following the Special Educational Needs and Disability Act 2001 should be of high quality. They will, of course, in no way affect the rights of parents to appeal to the SEN tribunal.

To come to the pointed raised by the hon. Member for North Thanet (Mr. Gale), essential guidance on the key features of the new statutory framework for inclusion that was introduced by the 2001 Act is set out in the draft code of practice. However, we have also consulted teachers, governors, local education authorities, teacher associations, voluntary groups, parents and others on separate statutory guidance on the new arrangements for inclusion. Copies of this guidance have been placed in the Library and we aim to publish it alongside the revised SEN code of practice.

The guidance provides practical advice on how the inclusion framework interacts with other provisions within the Education Act 1996; the reasonable steps that maintained schools and LEAs should consider taking to prevent inclusion from being incompatible with the efficient education of other children, which was mentioned by the hon. Member for North Thanet; instances when it may not be possible to include specific children; and the safeguards that protect the interests of individual children with special educational needs.

Inclusion can certainly improve the education experience of all children, but we have always been clear that one size does not fit all and that there is a continuing and essential role for special schools in an inclusive education system. The essential principle of our inclusion policy is to safeguard the interests of all children.

The hon. Member for North Thanet asked about resources. The principle is backed with substantial resources. Last week we announced an additional £9 million in the SEN standards fund for the coming year, taking the total available funds for SEN to £91 million. That will help to support training on the code of practice and give direct practical support to inclusion. Governing bodies can also, of course, deploy resources provided through a school's budget share to support additional training. The increase in the standards funds is only one part of a major investment in education in which we will have increased overall funding per pupil by nearly £750 in real terms between 1997–98 and 2003–04.

Hon. Members will appreciate that we have taken very seriously all the views that were put to us. We have acted on them and addressed them in the draft code of practice. I am pleased with the response to the revised proposals by those outside the House who follow such matters, and I commend the draft code to the House.

5.32 pm

Mrs. Eleanor Laing (Epping Forest)

A casual observer looking around the House at the peak time of 5.30 in the afternoon would think that we were discussing a peripheral issue of little consequence. We are not. The code of practice directly affects thousands of the most vulnerable among us, yet there are six interested Labour Members and the Minister and no interested Liberal Democrats other than the party's spokesman. Many of my colleagues are, of course, here because we have—

Mr. Stephen Pound (Ealing, North)

Count them!

Mrs. Laing

I cannot because they are behind me, but I know that there are far more Conservative Members present than Labour Members. [Interruption.] Proportionally, there are considerably more.

As ever, it is not quantity that counts, but quality. As the Minister just admitted, it is the quality of our arguments on this extremely important subject of special educational needs that has prevailed. How could the Minister stand at the Dispatch Box and talk about consultation and listening when he has come here to do a huge U-turn?

Mr. Win Griffiths (Bridgend)

Many Labour Members made the same points during the consultation process as those made by the Opposition and in the other place. It is the result of the total wisdom of all those who were interested that has brought about the changes.

Mrs. Laing

I am pleased that the hon. Gentleman makes that point. I pay tribute to the Labour Members who were brave enough to defy their terrifying Chief Whip and stand up for what they, and we, believed was the correct approach. The Minister did not think that we were right, but he has now changed his mind. Like the hon. Gentleman, we are pleased that the Minister has presented yet another draft of the special educational needs code of practice.

Sadly, it is typical of the Government to have tried to implement policy without having thought it through. I hope that the Minister will join me in thanking my hon. Friend the Member for South Holland and The Deepings (Mr. Hayes) and my noble Friend Baroness Blatch, who have shown the Minister the error of his ways and whose arguments he has accepted. He has been saved from making the wrong decision by their arguments and persistence. He and his Government owe them a debt of gratitude.

It is typical that this Government have dogmatically stuck to their original position while ignoring the advice and views of many acknowledged experts on the subject—not Conservative Members but members of outside bodies who devote their lives to trying to improve the plight of children in need of special education, and who ought to have been listened to earlier.

Implementing this code of practice soon is not the same as implementing a code of practice six months or a year ago; more children would have benefited if it had been implemented sooner. So, moving today's motion is not the same as accepting our arguments months or, indeed, years ago—or simply leaving alone the 1994 code of practice, which was implemented by the previous Government.

It was hard to keep a straight face while watching the Minister. I compliment him on managing to do so while he spoke about consulting and how, from now on, the Government will consult on other matters in the area. I am sure that the Minister now realises that there is no point in consulting if, following the consultation procedure, everything that was said to the Government is totally ignored.

It is a matter of record that the previous version of the code of practice was eventually laid before the House in June after nearly a year of dithering following its publication. On 10 July, a debate took place, in which the Minister ignored the comments of my hon. Friends and some Labour Members.

As my hon. Friend the Member for West Derbyshire (Mr. McLoughlin) has just pointed out, because of our system of deferred voting, about which I suppose I had better not make any particular criticism—hon. Members may well infer it—Labour Members were being whipped into the Lobby to vote for the code of practice at the very moment on 11 July that the Government were withdrawing the motion, just before it was to be put before the other place. We had the farce of Labour Members putting their crosses in the box, voting in favour of a code of practice that at that very moment was being withdrawn. To say that that is inconsistent is an understatement.

Mr. Damian Green (Ashford)

Joined-up government?

Mrs. Laing

It certainly is not joined-up government; the Minister does not know what he is doing. However, a sinner's repentance is always welcome. We welcome the withdrawal of the previous code of practice and the Minister's courage in coming before the House yet again on this subject to introduce a much better one.

It is hard to understand why the previous Secretary of State was so keen to downgrade the need for specificity in the drafting of statements. We did not understand it then, nor do we now. Many of the organisations representing children with special educational needs have long fought to have statements written clearly, without any room for misrepresentation. That is the least that parents of children with special educational needs can reasonably expect. They deserve far better than a woolly, vague statement.

We welcome the fact that the new code of practice requires that a statement contain details of hours of provision, staffing arrangements and any additional equipment that might be necessary. We supported those changes previously and we welcome them now. If only the Minister's colleagues were as brave as he has been in making a U-turn after listening to the better arguments voiced by my hon. Friends. However, I do not take credit for the changes solely for my hon. Friends; I take it for the many groups outside the place—including the Royal National Institute for the Blind and the Independent Panel for Special Education Advice—which argued that the Government were not doing their best for children in great need.

The Government have realised that they were wrong. We are glad to see that they are now almost right. We will not oppose the code of practice, but I feel obliged to point out that it is still not perfect. The RNIB has pointed out that the code includes neither provision for mobility education for children with sight impairment, nor provisions on early detection of visual impairment. We share the RNIB's concerns: we agree that, to a child with impaired sight, mobility is as essential as language skills are to any other child. I will give way to the Minister if he would like to respond on that point.

Mr. Timms

indicated dissent.

Mrs. Laing

No, the Minister does not wish to respond. Perhaps he will respond in writing later, or perhaps he will take the code of practice away again for redrafting and reintroduction at some future date—although I hasten to add that I do not encourage him to do that. We want the code of practice to pass now. Although we hope that further improvement will be made in future, we do not want to delay the implementation of the code any longer. The Government's dogmatic attitude has caused it to be delayed for long enough.

Mr. Gale

My hon. Friend is being characteristically generous to the Government in applauding the changes to the code of practice. It is all very well to will the ends, but where are the means? I understood the Minister to say that there is to be £25 million over three years for early years provision, presumably spread between approximately 100 local education authorities. Where is the beef?

Mrs. Laing

My hon. Friend, as usual, makes an excellent point. The Minister spoke, as he and his colleagues always do, in vague terms about funding per child throughout the country. He repeated an announcement that was made earlier this week about additional funding—but additional to what?

It is hard to know what Ministers mean when they talk about additional funding, because we can never be sure how often they have already added in the chunk that they are talking about. The Minister explained that the money he mentioned at the end of his speech was in addition to another sum, and he admitted that it had previously been announced. I will give way to the Minister if he wants to provide clarification, but it appears that he does not want to intervene. If the money is additional, to what is it additional? How often has it been announced? Sometimes, we have difficulty interpreting the figures correctly, as my hon. Friend the Member for North Thanet (Mr. Gale) said, because we can never be sure how many times an announcement has been made.

As I said, we welcome the return to the principle of the clear and precise wording of statements in the 1994 code of practice. We are pleased that the Minister has come to the House to restore the specificity and quantification provisions, as it was vital to do so. Nevertheless, we still doubt the Government's commitment to special educational needs.

Mr. Win Griffiths

Shame.

Mrs. Laing

The hon. Gentleman has responded to what I am saying, but the Minister still has not. I am sure that if the hon. Gentleman really thinks about the Government's commitment, he will join me in doubting it.

I have a letter from Mr. and Mrs. Pritchard, whose daughter Claire needs special educational provision. They are just one example of many thousands of parents who are not certain about what will be done for their children, what they can rely on and what sort of plans they can make for their daughter and the rest of their family because they are not certain that they can trust the Government to do what they say they intend or hope to do for children with special educational needs.

In my constituency, I regularly meet the head teacher of Oak View school, an excellent special school. He came to see me recently and explained that, although it is well known that the teacher shortage in our Essex area is critical in schools in general, the position for special schools is very much worse. He told me that a teacher in a special school in Loughton receives approximately £1,000 a year less than a similar teacher who works in outer London, only one mile way away. It is hard enough to recruit teachers to special schools without specific provisions that make it more difficult. Here is a case where teachers are suffering discrimination in the very area—SENs—where we desperately need to recruit them.

I wrote to the Secretary of State's predecessor on 14 December 2000 about that important issue, but I have yet to receive a reply. How can anyone doubt my concern about the Government's commitment if the Secretary of State, in all these months, has not even replied to my letter?

Mr. Bill Wiggin (Leominster)

Nor mine.

Mrs. Laing

Nor, indeed, to my hon. Friend's letter. If the Secretary of State has not even responded to a simple question about salaries, how can the Minister doubt why I should be concerned about his commitment and that of his Government to special educational needs?

Does the Minister know just how many special schools throughout the country are currently under threat of closure? Oak View school in my constituency is under threat of closure because of funding problems and the enormous bureaucracy heaped on it. How many more schools are in a similar position? I will happily give way to the Minister if he wants to respond. I understand why he does not want to respond when I ask how many schools—perhaps he does not have that information at his fingertips—but will he tell the House whether he has any plans for stopping special schools closing? He clearly does not want to respond. I understand that. I take it to mean that he has no plans.

Mr. Stephen O'Brien (Eddisbury)

On special needs schools, Brook Farm school in my constituency closed, despite a year's stay of execution following many appeals and representations to the former Minister. Its closure has added to the deep anxiety felt by parents of children who require special needs education. Not only have school places gone, necessitating longer journeys, but the introduction of the initial code caused great anxiety about certainty and quantification, particularly in respect of respite opportunities. For at least a year, and in my constituency for two years, parents and children have lived in a state of deep and unnecessary anxiety, because the situation was not handled by Government in a timely and more responsible manner.

Mrs. Laing

As usual, my hon. Friend is correct. Children in need of special education provision are not statistics. They are not numbers on a pie chart. They are individual people who are part of a family. Their parents have to plan not only for the children who are in need of special education provision, but for other children in the family. That is why they need to know the precise quantification of care that is to be provided, and why they need certainty for the future.

The Government have not provided certainty. The Minister's presence in the House today to introduce a different code of practice from the one introduced only four months ago shows clearly that certainty has not been provided by the Government. It is not surprising that parents of children who attended the school described by my hon. Friend the Member for Eddisbury (Mr. O'Brien) are more than concerned. Of course they do not trust what the Government say, because the Government change their mind this way and that. If a Government can change their mind right in the middle of a vote that is still taking place on an order laid before the House, they can change their mind any time and in any way.

If the Minister wants to show real commitment to special education needs, we will have to be convinced that he and his colleagues intend to provide the right funding for their plans, as my hon. Friend the Member for North Thanet said. They will have to convince us that their plans are consistent and that they will do what they say they will do.

In this area more than any other—there are many, many others in which the Government say one thing and do another—we have a striking example of the Government saying one thing and doing another. On this occasion, we are pleased that they are doing what they said they would not do, as they are now doing the right thing. The Minister gestures as if he is confused by what I am saying. I am not confused. The people who are confused are the parents of children who require special educational provision. They are among the most vulnerable in our society. They should not be confused. They should be able to depend on the Government's word, and they should know that if the Minister says something in the House, he means it.

Mr. O'Brien

I thank my hon. Friend for giving way to me a second time. She is making a powerful point. Our welcome for the Government's U-turn on the code does not diminish the unnecessary and untimely suffering and deep concern caused to families by the terms of the original draft order. They immediately recognised that it would throw into great uncertainty the care that they had already arranged. There was a deep suspicion that that was being done on financial grounds, rather than being motivated by concern for children and their needs.

Mrs. Laing

Once again, my hon. Friend is correct. Those parents have had more than a year of anxiety, not knowing what would happen to their children, what the Government would do, or whether the Government would listen to their concerns, as expressed by organisations such as the RNIB and IPSEA. At first, the Government did not listen, but now they have listened, at least in part. Parents have nothing on which to rely. That is wrong. Their children are among the most vulnerable people in our society and they deserve better.

We accept the order. I am not calling on my hon. Friends to oppose it, but we hope that it will not be withdrawn again tomorrow.

5.56 pm

Mr. Phil Willis (Harrogate and Knaresborough)

It was incredibly sad to hear the hon. Member for Epping Forest (Mrs. Laing) use her first major contribution at the Dispatch Box to deliver a party political attack on the Government on an issue of such importance and sensitivity. The fact that she had nothing whatever to say about some of the core issues relating to the code demonstrates the lack of integrity of an Opposition who have clearly not come to grips with the fact that unless—

Mrs. Laing

Will the hon. Gentleman give way?

Mr. Willis

I will not give way. [HON. MEMBERS: "Oh!"] There is no doubt that, in respect of schools, the Special Educational Needs and Disability Act 2001 was an important landmark on the journey towards a more inclusive society. The work of previous Conservative Governments on the matter dates back to the Education Act 1981—the first major education Act which introduced statements. Today's performance does a disservice to past Secretaries of State who did an enormous amount to establish inclusive education in our schools. Baroness Blatch needs a special mention for the work that she has done on the issue, together with my hon. Friends in both Houses.

This morning, I accepted a cheque, presented by Abbey National, on behalf of Barnados, which operates a restaurant employing young adults with learning disabilities in Harrogate. Virtually half of the young trainees who work in that commercial restaurant have Down's syndrome. When I met them this morning, I was reminded of the comment made by Lord Rix in another place when the code of practice was debated. He mentioned that he had just spent a wonderful day with his grandson, who is a Down's syndrome child. Lord Rix, peers like him and others who have fought for an inclusive society will have their dreams brought one stage nearer. We hope that in years to come, Lord Rix's grandson will enjoy the fruits of the code of practice, if the Government implement it in its entirety.

We welcome the U-turn by the Government, if that is what it is. There was a vicious attack on the Government in the House, and there would have been a similar attack in another place, over the code of practice that failed to include the quantity of resources attached to statements.

When one looks back to 1981 and to the Disability Discrimination Act 1995, one sees that the great deficiency in special needs provision in schools was the quantifying of statements. Previous Governments did not achieve that. I worked in schools that pioneered inclusive education for children with physical difficulties, sensory impairments and severe learning difficulties. As a headmaster, I never had sufficient resources to deliver what parents, children and teachers needed. We should seek to move a stage further towards delivering that. I do not criticise previous Governments, who made noble efforts in that direction, but we must keep that constantly in mind.

The code of practice does many good things. It is absolutely right to reduce from five to three the steps to be taken before statements are issued. I agree that there should be two steps for schools, and most schools will welcome more simplicity in respect of record keeping. However, Liberal Democrats particularly welcome placing parents at the heart of this issue and establishing, through local education authorities, proper parent panels and discussion forums to ensure that problems do not arise in the schools but are sorted out beforehand.

The hon. Member for North Thanet (Mr. Gale) made two interventions with which I absolutely agreed. The issue of parents is crucial. LEAs do not have sufficient resources to do what they are expected to do and they are now being given new responsibilities. How are they supposed to set up the new organisations under paragraph 2:17 and run them efficiently unless they have additional resources?

Mr. Gale

As the hon. Gentleman has come thus far with me, perhaps he would come a little further. Does he agree that, given that we shall lose good special schools because of the doctrinaire approach that will force children into mainstream education, that mainstream education and support will be even more expensive, so we shall need even more resources?

Mr. Willis

If the hon. Gentleman will be patient, I shall come to that point and meet him some of the way, but not all the way. I disagree with his premise that we shall see the end of special schools. The hon. Gentleman, who has a great deal of integrity in this area, will accept that the number of special schools that have closed in the past 10 years is extremely small. Virtually the same number of children are in special schools now as when he was a junior Minister in a previous Government. It is wrong to say that special schools are closing all the time.

Let me deal with the key issue of resources. The Minister rightly said—indeed, the code of practice says so—that the whole issue of inclusion depends on schools themselves being inclusive. Making a school inclusive is a costly business. It is not simply a matter of providing resources for an individual child, or a few children, with special needs. Paragraph 6:2 of the code of practice clearly states: All teachers are teachers of pupils with special educational needs. If inclusion is to work, it cannot be done on the cheap; it must be done with sufficient resources to enable schools to work as a community.

The hon. Member for Epping Forest was correct to say that the Government constantly reannounce funds. I have just looked at the £91 million that the Government have aggregated, which is about £4,000 per school. It is absolute nonsense to expect schools to put in place an inclusive SEN policy with that sum. The reason why so many teachers, heads and governors are fed up to the back teeth with an inclusion policy without the necessary resources is that, to deal with children with behavioural difficulties—an increasing number have severe behavioural difficulties—they need to train the whole staff. That is of paramount importance.

A child who is partially sighted or has a severe hearing disability cannot simply be put into a class where a particular teacher or SEN co-ordinator has been trained; the whole staff need training in managing such children. That cannot be done on £4,000 per school. It needs a significant investment in training. Will the Minister press the Chancellor of the Exchequer and the Secretary of State to recognise that special education provision is at a crucial point? The code of practice can make a real difference, but we must have the necessary resources.

Sadly, the code of practice scarcely mentions special schools, which are important. It is as if they simply offer a different route in meeting special educational needs. They do not. Special schools provide not just an alternative route but must be at the very centre in dealing with special needs children. Unless we regard special schools as centres of excellence, and resource and research centres, we shall make no progress. I hope that the Minister will encourage his colleagues to do that.

The whole House is delighted that the Government changed their tune on quantifiable provision in paragraphs 8:35 to 8:39 of the code of practice. We do not want blanket policies, but LEAs were often forced to have blanket policies because they had meagre resources to apply to special needs. We want those policies to be specific, clear and detailed and we welcome the Minister's commitment in that respect, but Liberal Democrats do not accept that provision should "normally" be quantified, as stated in paragraph 8:37 of the code. I challenged the Minister to give an example and, to be fair to him, he gave the example of a visually impaired child whose needs would change. That is a cop-out. Provision should not normally be quantified; it should always be quantified. There is no reason whatever why a statement could not be altered to meet different needs during the year. In that way, the child and his needs, rather than the resource implications, would be central. I hope that the Minister will accept that and put in place ways of allowing those concerned to look carefully at statements that are not quantified under the code of practice.

Will the Minister say in his summing up whether the new statements that are quantified will then be mandatory on the school and the LEA? If they are not, they are not worth the paper on which they are written. That is the crux of this debate. Once a statement is made that a child with speech problems, for instance, must have four hours' provision a week, who is liable if that is not delivered? Is it the school, the LEA or the Government?

Where a child with a statement of special needs moves into the independent sector, as will increasingly happen as parents choose the provision for their child, do the resources that go with that provision move into the private sector with the child, or must the private sector seek those resources separately?

There is a point of principle here, and that is the child. The parents may decide that they want a particular type of provision for their child, such as very small classes, which cannot be provided by the LEA. Given the additional resources needed to meet their statement, will that provision continue to be met in that area?

We welcome the issue of identification. The code of practice goes a long way towards saying at early years, primary and secondary stages which conditions should apply for identification. That is a huge leap forward in thinking. I also welcome the announcement of hearing screening for newborns. The hon. Member for Epping Forest referred to screening carried out by the Royal National Institute for the Blind. To have it written into the code that those two tests will be given to children at an early age will make a huge difference.

Paragraph 1:29 of the code of practice refers to SEN co-ordinators in early years settings. In my constituency and many others, particularly rural ones, some of the settings are very small because of the size of the village. Indeed, many children are looked after by child minders. It is nonsense to think that a child minder would employ a SENCO, and I know that the Minister does not intend that to happen. The code says that they can join together and employ a SENCO. They cannot—most child minders and early years settings work at a loss. They do it because it is part of social giving in most communities. They are embarrassed even taking the minimum wage from parents. Will the Minister consider whether the early years and child care partnerships could be obliged to employ SENCOs to deal with small settings and child care placements? In that way, a professional person would be employed by the local education authority whose job it was to ensure that special needs provision was delivered at a local child-based level across all the early years settings. That is a legitimate job for the LEA. If the Minister wants to privatise the service and give it to someone else, that is his decision. However, this issue needs to be considered.

The other area of weakness is special groups; the issue of excluded children is mentioned. However, a child is seven times more likely to be excluded from school if he has a statement of special needs than if he is within any other category. It is a huge problem. On the whole, children with behavioural difficulties such as autism and dyspraxia are the most affected. We must regard them as a special group. Along with local authorities and school settings, we must ensure that the infrastructure is in place to deal specifically with children who have behavioural difficulties. Travellers' children often have special needs that need to he met in a much more entrepreneurial way, and the same is true of immigrant children, particularly children of asylum seekers.

We welcome much in the code of practice, such as the changes with regard to naming a specific school. We are delighted that schools cannot refuse to take children simply because they have special needs. That was not right, and it is good to see a change of heart. It is good, too, that there will be more discussions about the placement of a child between the LEA, parents and other professionals. However, at the heart of the code is what happens in school and the people who organise and work with children with special needs, particularly SENCOs. Paragraphs 5:33 and 6:36 make it clear that SENCOs should have more time. All Members who have asked a SENCO, "Do you have enough time to do the job?" will know that the answer is no. In some schools, the amount of time SENCOs have is derisory. I hope that the Minister will instruct Ofsted to ensure that when it inspects a school, those who provide the infrastructure to deliver special education needs have the time to do it. We have gone a long way in training SENCOs and professionalising the special needs provision, and we need to do it even more.

There are two ways in which we could help schools immediately. First, there could be standard pro formas for individual education plans. The idea that all schools should devise their own is nonsense. I hope that model IEPs could be put on the internet or the website of the Department for Education and Skills. We should encourage such provision. Secondly, to enable schools, particularly large ones, to track all children with special needs—not just those with statements—needs sophisticated software. The Government can commission that on behalf of our schools.

This is a major step forward. If the code of practice can have the necessary resources, the Government will go down in history as having taken a quantum leap for youngsters who are born without the advantages that many of us have.

Mr. Deputy Speaker (Sir Alan Haselhurst)

Order. The Front-Bench speeches have taken 66 minutes out of the 90 available, leaving very little time for Back Benchers. I hope that those hon. Members will be mindful of each other's needs if all are to make a contribution.

6.17 pm

John McDonnell (Hayes and Harlington)

I was one of the Members who voted against the Government last time, solely on the basis of the wording of paragraph 8:37. Admittedly, it was one of the shortest rebellions in parliamentary history when it was withdrawn within two hours—a form of "codus interruptus", I suppose.

I was concerned about quantification, and I remain anxious about the ability of local authorities to exert flexibility. The Minister's example was not reassuring because I should have thought that the change in circumstances would have been picked up at the annual review. The system proposed already covers that flexibility. However, I am open to persuasion.

When the Minister replies, it would be worth while if he made an explicit statement that could be used by people in defending their rights if there were any possibility of flexibility being abused by local authorities. He could say that flexibility should not be used as a device for avoiding clarity of quantification of a pupil's needs and that any attempt to use it as such would be contrary to the spirit of the guidance.

How will the Minister monitor the use of the flexibility? We have been assured that provision should normally be quantified, but I hope that the flexibility will be used only in very rare and exceptional cases, and that a report would be made to the House if it were believed that an abuse had occurred. That would require a monitoring system.

6.19 pm

Mr. Bill Wiggin (Leominster)

I am grateful for the chance to ask the Minister about the number of statemented children in Herefordshire. The current figure is 4 per cent. and I believe that it is due to be cut to 2 per cent. That is of particular concern to me because Wigmore primary school in my constituency has a special educational class with 12 places. It received a gold award from Ofsted for its excellent special educational needs teaching. Since then, I have been told that the number of places is due to be cut to six. That is awkward, because there are seven statemented children in the school. One full-time staff member is expected to go part-time. In a city that is understandable, but in a rural area close to the Welsh border, it is not practical. It means that that person will lose half their salary.

The extra pupil may or may not be able to fit into the school, and the family are deeply concerned. Moreover, we cannot know how many statemented pupils there will be next year or, indeed, in the year after that, which is worrying. It seems that children with special educational needs are being forced into pigeonholes to suit policy enforced by the local education authority. Although the matter is still under consultation, the staff in question seem to believe that most of the decisions have already been made.

I hope that the Minister will consider the problem in rural areas, where flexibility does not exist. I also hope that in a school whose excellence has been identified and praised by Ofsted, the present position will be preserved. I am worried by paragraph 1:14, which states that LEAs must publish their general arrangements, including any plans setting out objectives, targets and timescales covering local arrangements for"— this is the last requirement in the paragraph, and I hope that the House will forgive the grammar, for which I am not responsible— explaining that element of provision for children with SEN (but without statements) which the LEA expects normally to be met from maintained schools' budget shares and that element of such provision that the authority expects normally to be met from funds which it holds centrally. If the LEA explains that it cannot meet those special requirements because it has no funds, what will happen to children with special educational needs?

6.21 pm

Mr. Andrew Turner (Isle of Wight)

I first met a child suffering from autism during my second term as a probationary teacher. He had a learning support assistant and was in the fourth form, as we called it then.

I had no idea what autism was; I was never told. I knew nothing about the child's needs. He was in, shall I say, a "lower order" class, which for a probationary teacher was not always the easiest environment in which to maintain discipline. It must also have been very difficult for him. Fortunately, that was a long time ago and things have moved on—partly, at least, thanks to my noble Friend Lady Young, who introduced and worked hard on provisions for pupils with SEN following the Warnock report.

The Government's amendment to the code of practice is welcome—I say that unconditionally—but much work remains to be done. Local authorities must be persuaded to recognise and assist the parents of pupils with SEN. I owe a lot to Claire Franklin—one of the parents of autistic pupils on the Isle of Wight who contributes much to supporting others in the same position—and to Jimmy Spence, a former Isle of Wight councillor, who brought the issue to my attention two or three years ago. I also owe a lot to my hon. Friend the Member for Tiverton and Honiton (Mrs. Browning), who has done much work for youngsters with autism spectrum disorders. She kindly visited the island, and met Claire and Jimmy and many other mothers and fathers of pupils with special needs.

It is not enough to write things down. It is essential for local authorities, whatever their political complexion, to show a commitment—a genuine determination—to meet the requirements of SEN pupils. Let me a give a few examples. In doing so, I do not criticise my local authority particularly, nor do I make a political point.

Mothers—it usually is mothers—with other children to look after may have to spend hours attending, say, a council meeting before they can even ask, in public question time, a question that frustration has driven them to go and ask, let alone receive an answer. If they get an answer, it will be read out rather less effectively than things are read out by the Minister. If they must then correspond at length with the local authority and receive no answers, they are not being given the treatment and support that they deserve from the authority.

Such people may subsequently have to go to tribunals and seek support from IPSEA, the National Autistic Society or other outside organisations, in the face of a local authority funded from the public purse—whether or not it considers itself to be fully funded—that may employ solicitors. Many authorities employ solicitors to challenge parents at tribunals, although I am pleased to say that Isle of Wight council does not. If that happens, we are not giving parents the recognition and justice that they seek and need for their children.

I shall concentrate on autism spectrum disorders, but local authorities simply do not seem to understand a huge number of issues. For example, such children cannot travel on a bus unaccompanied because they might get off and wander away—and, if they wander away between leaving home in the morning and arriving at school, who would be responsible? The same applies when children are on the way home. If conditions on the bus are not perfect for children with challenging needs such as autism—and they seldom are—such children will become upset, and be more likely to wander. If conditions in the school playground, let alone the classroom, are not perfect, children may go AWOL and no one may notice until the beginning of the next lesson or, in some cases, the one after that.

Such things are not necessarily written down in statements. A local education authority may make a school responsible for providing a learning support assistant, but the school may not recognise that an autistic child needs constant encouragement from a figure whom he or she recognises. It is no good for such a child to have half an hour from Mrs. X in the morning and three hours from Mrs. Y in the afternoon. It is no good writing things down in a statement if the local authority or the school—or, in some instances, the health authority—cannot deliver. For instance, speech and language therapy are all too often specified in statements and then treated more as hope than expectation because the health service cannot provide them.

I echo the request of the hon. Member for Harrogate and Knaresborough (Mr. Willis), and ask the Minister to make clear who is legally liable. Is it the school, the LEA, the Government or, as I fear, no one? Who is liable if what is demanded in a statement is not provided, month after month?

There are a number of issues relating to respite care, which I will not go into now, but there is also the issue of social services' support for parents of pupils with autism disorders, and for the youngsters themselves. Parents' preferences should be recognised. I thank the Minister for his reply to my earlier intervention. My point was that when a statement does not name a particular school, does the fact that a child has been statemented prevent the LEA from having to recognise and, wherever practicable, give effect to, the parents' preference for placement in a particular LEA school? I understand the point made by the hon. Member for Harrogate and Knaresborough, but I am talking about cases in which the school has not been named. Are parents in such cases given genuine opportunities to consider independent schools, or are their hands tied behind their backs? Is it sometimes implied that considering an independent school implies a lack of faith in the maintained system, which does not deserve to be taken into account by the LEA?

When children transfer from school to school—we have a three-tier system on the island, so there are two transfers for every child—is the review of their needs undertaken in good time not only for the transfer, but for parents to express a preference? If it is not undertaken in the September before transfer, the parent will not be able to express one.

There is great need for those matters to be understood by local authorities and schools. That is why I so strongly support maintenance of the existing special school provision. I pay tribute to Medina House school and Watergate school, in Newport, and to St. Catherine's, which is an independent school in Ventnor, all of which very effectively serve pupils with special educational needs.

The Minister mentioned, and I welcome, work on the early identification of need. However, it is no good identifying need if it then takes three years to create a statement. I hope that all local authorities and all those who cater for pupils with special needs will recognise the urgency of providing them with statements as quickly and effectively as possible, and with not only quantified measures—although I welcome those—but qualitative ones. Parents see the need for that, but we must all see it if those children are to receive the education that they deserve.

6.31 pm

Mr. Timms

I listened with great interest to many of the points that have been made and shall attempt to respond to as many as I can in the few minutes available.

Although I know that the hon. Member for Epping Forest (Mrs. Laing) is new to her Front-Bench role, I am sorry that she chose to attempt to score some party points. I do not think that that approach will commend itself to people of all parties or of none who follow the debate. Her attempt was ill-judged. I am glad, however, that some serious points were made by hon. Members on both sides of the House, and I shall try to respond to them.

The hon. Member for Epping Forest mentioned a U-turn. In closing our debate in July, I emphasised that I would reflect on the points that had been made on quantification. We have made changes accordingly. I should have thought that she would welcome them, as she sort of did. Nevertheless, we have retained in this draft code almost all the advice that was included in the June draft.

Mrs. Laing

Will the Minister give way?

Mr. Timms

I shall do so only briefly as I do not have much time to reply to the other points that have been made.

Mrs. Laing

I thank the hon. Gentleman for giving way. I should like to clarify that I most certainly welcome the proposals and congratulate him on his courage in coming back to the House and making them.

Mr. Timms

I am grateful to the hon. Lady for that intervention.

I agreed with much of what the hon. Member for Harrogate and Knaresborough (Mr. Willis) said, and I should like particularly to join in his tribute to Lord Rix. The hon. Gentleman has long followed the issue, and he has made a very substantial contribution not only in relation to education but to other aspects of the Government's work on the issue.

The hon. Gentleman and other hon. Members legitimately expressed concerns about funding for inclusion. I emphasise that we have made great progress on that front in recent years. In 1996–97, for example, funding for the schools access initiative, which is intended to improve accessibility for people with disabilities to mainstream schools, amounted to £10 million; this year, it amounts to £50 million; next year, it will increase to £70 million, and the year after to £100 million. The sums for investment in improving access to mainstream schools have increased very substantially. Furthermore, in 1996–97, the special educational needs element of the standards fund was £24 million; this year, it is £82 million.

We are seeing unprecedented increases in spending on education not only this year, but next year and the year after. Moreover, a substantial chunk of those extra resources will be spent on meeting concerns that have been expressed in this debate. The total size of the inclusion block in the current financial year is £330 million, much of which is delegated to schools. So, although it is right to express concerns about resources in our debate, I emphasise that we have made great progress and that more progress will be made next year and the year after.

The hon. Member for Harrogate and Knaresborough was also concerned about funding for parent partnership and disagreement resolution services. We envision that those duties on local education authorities will, as intended, come into force on 1 January. In the current financial year, LEAs have been able to use their standards fund allocation for SEN to establish those services in advance of the legal obligation to do so. From next financial year, however, as they will be a statutory duty, funding will be provided using the usual SSA system. Given the increase that LEAs will receive next year, we hope that those duties will be carried out effectively.

Various hon. Members expressed concerns about special schools. I emphasise that inclusion does not amount to a drive to close special schools. I thought that the hon. Member for Harrogate and Knaresborough made that point well. There will of course continue to be changes to local provision to reflect local circumstances. Those are decisions that will be made locally either by local school organisation committees or by the adjudicator, as has always been the case. However, as we made clear in the debates on the Special Educational Needs and Disability Act 2001, we do not envisage that the size of the special school sector will change dramatically. The latest figures on pupil numbers support that belief. Indeed, 42 special schools have opened since May 1997. I therefore think that there is some confusion on that issue.

Mrs. Laing

What plans do the Government have to stop the closure of special schools that are under threat? Does he know how many are under threat of closure?

Mr. Timms

As I said, those are matters for local decision. There will undoubtedly have to be changes in some areas in response to local circumstances, just as there has been a need for new schools to be opened. Indeed, some new schools have opened.

It is not true either that the code is written only for mainstream schools. It provides guidance for all maintained schools, including maintained special schools. We have encouraged all special schools to become centres of excellence, as we were urged to do in this debate. I draw the attention of the hon. Member for Harrogate and Knaresborough to the example of Norfolk Park school, in Sheffield, which is highlighted in the inclusion guidance as a very good example of what he was calling for and of what we are starting to see.

The hon. Members for Harrogate and Knaresborough and for Isle of Wight (Mr. Turner) asked about the status of statements and whether they are mandatory. The answer is that they are mandatory. If a statement is not delivered, the LEA is ultimately responsible for ensuring that the provision in a statement is made. I hope that that makes the position very clear.

Mr. Chris Pond (Gravesham)

That may not apply to under-fives. One of my younger constituents, Francesca Norman, is entitled to five sessions per week but is being provided with only three by Kent county council. Can my hon. Friend give any hope to the parents of under-fives that their children will have the same entitlement as other children?

Mr. Timms

Certainly the concern about the early identification of special educational needs is an increasingly important theme. Consequently, we have announced extra funding to help LEAs in their early years development and child care partnerships to improve local provision for young children, and we have a working party joining different agencies together to develop guidance for health and education practitioners on a coherent approach to the early identification of needs and the provision of support. I certainly should expect my hon. Friend's constituent and many other people to start to benefit from that. In response to his specific question, the code does apply to under-fives.

Mr. Gale

Will the Minister give way?

Mr. Timms

I cannot give way, given the late stage of the debate. I was asked what we were doing about special educational needs co-ordinators—

It being one and a half hours after the commencement of proceedings on the motion, MR. DEPUTY SPEAKER put the Question, pursuant to Standing Order No. 16.

Question agreed to.

Resolved, That the draft Special Educational Needs Code of Practice, which was laid before this House on 23rd October, be approved.