Official Report of the Grand Committee on the Special Educational Needs and Disability Bill

HL Deb 23 January 2001 vol 621 cc1-62GC

Tuesday, 23rd January 2001.

The Committee met at half past three of the clock.

[The Deputy Chairman of Committees (Viscount Allenby of Megiddo) in the Chair.]

The Deputy Chairman of Committees (Viscount Allenby of Megiddo)

Before I put the Question that the Title be postponed, it may be helpful to remind your Lordships of the procedure for today's Committee stage. Except in one important respect, our proceedings will be exactly as in a normal Committee of the Whole House. We shall go through the Bill clause by clause; noble Lords will speak standing; all noble Lords are free to attend and participate; and the proceedings will be recorded in Hansard. The one difference is that the House has agreed that there shall be no Divisions in the Grand Committee. Any issue on which agreement cannot be reached should be considered again at the Report stage when, if necessary, a Division may be called. Unless, therefore, an amendment is likely to be agreed to, it should be withdrawn.

I should explain what will happen if there is a Division in the Chamber while we are sitting. The Committee will adjourn as soon as the Division Bells are rung and will resume after 10 minutes.

Finally, I should inform the Committee that, to enable the noble Lord, Lord Ashley of Stoke, to participate, his personal transcriber will sit beside him for the duration of proceedings on this Bill. I hope that is acceptable to the Committee.

Title postponed.

Clause 1 [Education in mainstream schools of children with special educational needs]:

Lord Ashley of Stoke moved Amendment No. 1: Before Clause 1, insert the following new clause— SECTION 316: REMOVAL OF CONDITIONS ("—(1) Section 316 of the Education Act 1966 ("the 1996 Act"), is amended as follows. (2) In subsection (1), leave out "if the conditions mentioned in subsection (2) are satisfied". (3) Leave out subsection (2).").

The noble Lord said: In the absence of the noble Lord, Lord Beaumont of Whitley, I shall move Amendment No. 1, and speak also to Amendments Nos. 13 and 14, which are linked together. The objective of the Bill is to provide mainstream education for all children, wherever possible. These amendments seek to block the loopholes and to prevent any abuse of the legislation.

We all know that some local education authorities abuse the provision for "efficient" education of other children and they have utilised that to exclude disabled children and SEN children from mainstream schooling. That is a very easy loophole for those local education authorities which are either ignorant or prejudiced, or those who want to avoid making special provision for these children. That attitude is very damaging to children with special educational needs and, apart from the actual exclusion, the potential for unfair exclusion hangs over parents and children. That simply cannot be right.

It is ironic that a Bill which seeks to end discrimination itself discriminates against children with SEN. In other words, it favours "other" children and excludes the child with SEN, which simply cannot be right.

The phrasing discriminates against SEN children in the sense that it implies that children with SEN are disruptive—which, of course, is absolute nonsense. It creates an unfortunate atmosphere. Rare cases hit the headlines of children making a nuisance of themselves, but they are rare and other remedies exist.

When the Minister replies, will she comment on the fact that there are non-SEN children who are unruly, abusive, bullying and arrogant? They are far more likely to be disruptive in the classroom than any number of children with SEN. What provision are the Government making to deal with them?

I recognise that the Government may claim that Clauses 5, 6, 7 and 8 prevent misuse and abuse. I am not really impressed by that. Let us take Clause 8 as an example. The authority only has to "have regard to guidance". Those authorities I have in mind will simply brush aside guidance. If there is no instruction, the guidance will not interest them at all. If they simply have good guidance they will say that they have had regard to that provision, but, after considering it, decided to ignore it. If the Government want this provision, they have to demonstrate that it is needed. I suspect they cannot.

Amendment No. 14 would leave out the word "other" and insert the word "or". It would be incredible if the Minister objected to Amendment No. 13, which is very reasonable, but if she is uncharacteristically unreasonable and does not accept it, Amendment No. 14 is a last-ditch fallback. I believe it is wrong to elevate "other" children above those with SEN. It is remarkable discrimination and it is totally unacceptable. The least we can do is to write on the face of the Bill that the efficient education of all children is the aim. Anything less is laughable.

I do not want my noble friend the Minister to think I prefer Amendment No. 14. I would prefer Amendment No. 13, but I tossed in Amendment No. 14 to show how reasonable I always am. I beg to move.

Baroness Sharp of Guildford

I wish to support the noble Lord, Lord Ashley, in proposing Amendments Nos. 13 and 14, partly because my Amendment No. 7 includes elements of Amendments Nos. 13 and 14.

I wish to make it quite clear that from the Liberal Democrat Benches we have very great support for the Government's interest in the inclusion agenda. We feel there is now sufficient evidence to show that, where children with special needs and disabilities are included in mainstream schooling, it is to their advantage and to the advantage of the children in the mainstream schools. Where this can be achieved, we would very much like to see it.

There is a great deal of concern in the special educational needs community that the use of the words, the provision of efficient education for other children in the Bill might be a caveat that could be us as a general excuse for exclusion. I put forward my amendment and support the amendment of the noble Lord, Lord Ashley, because it is important for us to have a clear view of what is meant and what the parameters are.

Various cases have been quoted, including the famous case of Nicky Crane, who was excluded from a mainstream school because he needed to have support in his classes. There are enough cases for us to be concerned that the provision is not used as a general excuse for excluding children who have special needs that may not conform to what the majority see as normal behaviour.

The Government have, to some extent, provided a definition of the caveat in the Explanatory Notes. They say that an LEA does not have to provide a mainstream place where parents do not want one. In practice, incompatibility with the efficient education of others is likely to be where pupils present severe challenging behaviour that would significantly disrupt the learning of other pupils or place their safety at risk.

That seems a fair enough definition. It clearly puts a lot of emphasis on those with emotional and behavioural difficulties. However, although that will be included in the code of practice, would it not be better to have it on the face of the Bill? How far do the Government see it as a definition of what is incompatible with the education of others? Could it not be taken further in this rather more specific definition that we see incorporated in the Explanatory Notes? It will, as I understand it, be in the code of practice.

I should like to take a little of the Committee's time to explain further the views from these Benches of the specific roles of special schools and mainstream education. My amendment, Amendment No. 7, talks about being in the best interests of the child. All of us recognise that there is a place both for special schools and for mainstream education. As I have made clear, the preference from these Benches is to have children included in mainstream education whenever possible.

However, these two roles are seen as being complementary to each other. In particular, we should like to see the role of special schools develop so that they become sources and centres of expertise for the system as a whole. An example that has been quoted is that of Abbot's Lea special school in Liverpool, which has operated an inclusion programme with the Speke mainstream school since 1991. The two schools operate parallel timetabling; the students wear the same uniform; and one member of Abbot's Lea special school is permanently on site at Speke to offer support. The mainstream school has allocated a room as a permanent autism resource base for autistic children. In 1999, 11 children were attending Speke for between 10 and 75 per cent of their time. Examples of their successes include a girl with autism who now attends her local comprehensive, after being able to prove that she is ready to return to mainstream education on a full time basis through her success at Speke. Another former pupil attends Liverpool University, and another full time mainstream further education college.

This is precisely the way in which we should like special schools to be integrated into the system of education. It is very much the vision that we have of the way the system might develop. However, it is necessary to make clear at this point the role of special schools. One friend of mine, who has been involved as a governor of a special school for many years, told me that in some cases, in such special schools there are pupils who are slower learners. There is a tendency to think that those who are slower learners can easily be accommodated, with help, in the mainstream schools. Sometimes they cannot because they do in fact need the environment of the smaller schools in which to develop and expand themselves. There is now a tendency to put into these special schools those with emotional and behavioural difficulties, who are disturbed children. This has created great problems in some of these special schools, which are in effect for the slower learners rather than for those with emotional difficulties. One has to be very sensitive to this.

Finally—and we shall come on to this later—it is very important that, in addition to the two caveats that these two amendments seek to delete, we ensure that we include the caveat that the wishes of the child should be taken into account.

Baroness Darcy de Knayth

As I put my name to Amendment No. 13 of the noble Lord, Lord Ashley, perhaps I may speak now. I, too, would wish not to exclude the wishes of the parent but Amendment No. 13 simply excludes the efficient education of other children. As the noble Lord, Lord Ashley, and indeed, the noble Baroness, Lady Sharp, indicated, the caveats have over the years been used as an excuse by LEAS and as a smokescreen for prejudice against pupils with disabilities and/or learning difficulties. I should like to give one example to show how that can be purely from prejudice and misunderstanding. This was given to me by IPSEA, the Independent Panel of Special Education Advice. I should declare now that I am a member of that panel. The case is that of Paul Gibbs, in Suffolk, who was robbed of almost his entire secondary schooling by the caveat. The possibility of his being included in the local mainstream high school was never, in IPSEA's opinion, seriously considered until half way through what was to be his penultimate year of formal education. When he was finally admitted to the school, it was immediately and readily acknowledged that there was no way in which his needs could not be met; or that the education of the other children or the efficient use of resources would be prejudiced. In short, the placement was just right for him and the staff agreed and were delighted to have him. Nevertheless, the caveats had been used for over three and a half years to rob him of his education. I welcome the fact that the Government have gone part of the way to remedying the situation by removing some of the caveats, but this one, while it remains, will, I fear, be used as a smokescreen.

Of course it is vital to protect the education of all children at school, with and without special education needs. But head teachers have very real powers already with regard to children, with and without special needs, whose behaviour prejudices or may prejudice the education of other children. They can exclude the child either on a temporary or permanent basis. Therefore the power to exclude would make the caveat redundant.

I am more worried by Amendment No. 14 in the name of the noble Lord, Lord Ashley of Stoke. I understand the argument that it is more inclusive in that it refers to all children, but does it not put back the caveat of the need for efficient education to be provided which at one point was one of the provisos? I wonder about that.

3.45 p.m.

Baroness Blatch

I say at the outset that I do not wish my early comments on the Bill to be any kind of omen as regards any disagreement with the noble Lord, Lord Ashley of Stoke. However, I take issue with the proposition that these amendments should be agreed to.

First, there is something unacceptable about basing the rationale for the amendment on bad practice, on things that are done by local authorities and/or schools, and always citing examples of that bad practice. There will be times when the efficient education of other children will be a very real issue. To remove that provision completely and to introduce inflexibility into the Bill is unacceptable. I refer to a local education authority and/or a school which is abusing—that is the word that is used by the proposers of the measure—its position and making light of the reasons why it should not accept a child into mainstream schooling.

The informal conciliatory process that can be used to resolve any issues locally is a welcome addition to the ways in which people can challenge decisions. I would prefer to leave it at that because at least it leaves some flexibility for all kinds of situations to be taken into account. There may be undue pressure for a child, to go into mainstream education where that may not be appropriate, or there may be pressure to keep a child out of mainstream education where that may not be appropriate. The Bill refers to efficient education for other children.

I hope that no one will say that such is the status of the child with special needs—we all regard them as special, that is why we use that word—that the education of other children should be in any way sacrificed. Again, it is a question of degree. As regards some of the examples we have been given, it is possible to make physical adjustments to the school; adjustments to the staffing of the school, and adjustments to the resources of the school. There needs to be better understanding and training on the part of the staff of the school to appreciate that mainstream education is appropriate for some children with special needs. But to remove the provision I am discussing and end up with what I would regard as a very inflexible situation is something that I would find difficult to support.

Lord Northbourne

I would like to declare my interests: I am the trustee of the Caldecott Community which is a special school; I am a patron of an independent school, and I was the governor of Weavers Fields School in Spitalfelds.

I reluctantly have to oppose the noble Lord, Lord Ashley of Stoke. There are two reasons why this amendment is wrong. The first is that there are cases where the mainstream school is not the right solution for the child; we are going to discuss that under a subsequent amendment. The issue here is the effect that putting a child into mainstream education has on other children in that mainstream education. I believe we have to look at the issue of proportionality. I have, I hope, enormous sympathy and understanding for the children who suffer from disabilities. I can quite see that a child who is, for example, in a wheelchair can be satisfactorily integrated into a mainstream school; and it can be good for the child and good for other people in the school. However, I am particularly concerned about children with Asperger's syndrome, other forms of autism, emotional behavioural difficulties and problems like dyslexia—learning difficulties. These disabilities demand considerable additional resources if a child is to be in a mainstream school. One cannot afford to have too many children with that kind of disability in one class. Therefore, one should consider some way of piecing the Bill together so that local judgment can be used to ascertain the best interests of the child and other children. It should not simply be a diktat from the sanctuary of buildings.

Lord Addington

The noble Lord is not aware that in Swansea the education authority has dyslexia-friendly schools, which means that everyone can be integrated. A large number of people can now be integrated into the mainstream. I appreciate what he said about severe cases which will still need some special schools to act as a catchnet for those who have not been spotted and have not received help early enough. However, it is certainly possible to integrate a far greater number of people, especially those with hidden difficulties.

Lord Northbourne

I believe that I am entitled to speak again in Committee. I forgot to make the main point that I wanted to make: that the issue here is resources. Of course, certain education authorities and schools which are rich, can do the kind of thing that the noble Lord, Lord Addington, has described. However, the reality is that in some of our inner cities today we have schools that are about to go onto a four-day week: they do not have the same teacher for the whole of one term, let alone the whole of one year. It is ridiculous to suppose that those schools can have spare resources to cope with the kind of problems about which we are talking without disadvantaging their existing children.

Lord Morris of Manchester

George Bernard Shaw once apologised for writing a long letter: it was due, he said, to his not having the time to write a shorter one. So I make no apology for intervening only briefly in this debate. I do so principally to support the amendment of my good and noble friend Lord Ashley of Stoke, which seeks to delete lines 18 and 19 on page 1 of the Bill.

My noble friend was too modest to recall today that he was a leading player in enacting the world's first statutory provision for improving the prospects of inclusive education for disabled children. I refer to Sections 4 to 8 of the Chronically Sick and Disabled Persons Act 1970 on access to the built environment for disabled people, including access to mainstream schooling for disabled children.

I had no more doughty an ally than my noble friend in promoting that legislation, which also includes the world's first ever legislation on autism—to which the noble Baroness, Lady Sharp, and the noble Lord, Lord Addington, referred—and on dyslexia.

I gave my noble friend Lady Blackstone my warm support for the Bill at Second Reading, because it is a major further step towards inclusive education for children with disabilities. The amendment of my noble friend Lord Ashley improves the Bill by helping to take the process still further and I strongly support his amendment.

Lord Rix

I, too, rise to support Amendment No. 13, in the name of the noble Lord, Lord Ashley of Stoke. The current reference to the provision of sufficient education for other children is a catch-all phrase that will encompass a great many excuses. I have listed a few excuses that have arisen: a child needing a classroom assistant; a child having to leave for the next lesson a few minutes early to avoid the crowded corridors; a child with diabetes needing to eat a snack during lessons; a child with autism, anxious to answer all the teacher's questions and needing some help to let the other children in. Those are real examples that could be covered by the need to provide efficient education for other children", thereby adding to the possibilities for exclusion.

Lord Baker of Dorking

I have misgivings about these amendments, so I find myself in support of the noble Baroness, Lady Blatch. I suspect that she is speaking on behalf of the Government in opposing the amendments, because the Government have already gone a considerable way by removing the condition concerning public expenditure. I should also declare an interest: as the Committee probably knows, I am President of the Royal London Society for the Blind, which maintains one of our country's leading blind specialist schools.

The problem here has been correctly identified by the Government in paragraph 46 of the Notes on Clauses, to which the noble Baroness, Lady Sharp, referred. The Government are most concerned about those pupils who present severe challenging behaviour, because they have the greatest power to disrupt the classroom, which is the real problem. A child who has quite severe physical disabilities, who is visually impaired, deaf or partially deaf, will not be targeted by that exclusion. The problems of those children can be met, provided the resources are there. It is much more difficult to deal with the problems of the emotionally disturbed child who can engage spontaneously in disruptive behaviour and disturb the class. That is what the Government are getting at. The teachers or the LEA should have discretion and judgment left to them. Anybody concerned with the administration of the education system would take that view.

We have had a brief from the National Union of Teachers. In the past I have not often agreed with everything—or indeed, with anything—that the NUT has said. However, while the NUT welcomes the thrust of the Bill, which is inclusive, the brief makes it clear that the professional judgment of teachers has to be taken into account when deciding whether educating a particular child in a mainstream school would be incompatible with the provision of efficient education for other children. That is probably right and it would be imprudent for the Committee to support the amendments.

Baroness Darcy de Knayth

I should like to comment briefly. I understand the point of the noble Baroness, Lady Blatch and the noble Lord, Lord Baker, that the other children need to be protected, but how do we protect the needs of children with special educational needs who are unjustifiably being excluded? Or is this just an excuse? The Minister well knows that an attempt was made to sort the problem out in the School Standards and Framework Act 1998. We went to see the Minister, Charles Clarke, who wrote to the local authorities about the issue. We are constantly trying to safeguard the interests of the children who are unjustifiably excluded. I hope that the Minister will be able to produce some positive answer even if she does not feel able to accept the amendment.

4 p.m.

Baroness Blackstone

We have rather an interesting situation on these amendments, because everyone on this side of the room has spoken in favour of them, along with Liberal Democrats, and everyone on the other side has spoken against them. Members of the Committee will not be surprised that on this occasion I am going to take the other side's position. I am grateful for their support.

Amendments Nos. 1 and 13 are, in essence, driving at the same point, although they do so in slightly different ways. Both try to secure an absolute right to a mainstream place for children with special educational needs, if that is what parents want.

In discussing Clause 1, it is important to recall the thinking behind the existing Section 316 of the 1996 Education Act. That provision was designed to enhance inclusion and to act as a positive force for inclusion. However, I accept that that section has all too often been used to prevent children who could benefit from being educated in a mainstream school being placed in one. Section 316 has unfortunately taken on a somewhat negative stance, which is why this Bill seeks to strengthen the right to a mainstream place for children with special educational needs.

The Government have always taken a pragmatic approach to inclusion and, frankly, we shall go on doing so. This is in order to ensure that the interests of all children are safeguarded. We simply must guarantee that inclusion is always based on a sound foundation, but I really do not think that a dogmatic approach would work. It would alienate parents and teachers and, even worse, it could end up sacrificing the interests of all children.

Amendments Nos. 1 and 13 would secure an absolute right to a mainstream place where this is what parents want. That would mean that no consideration whatever could he given to the impact that a child's inclusion would have on the learning and indeed, from time to time, the safety of others. Even some radical supporters of inclusion accept that it is not always right to place a child in a mainstream school, because of the danger that they may present, not only to others but also to themselves. We believe that the impact on the learning of others must be considered.

For inclusion to work, there must be confidence that pupils' needs can be provided for appropriately in the mainstream, without a detrimental effect on other children. An absolute right, dependent on parental choice, could jeopardise that. It could lead to a headlong dash towards total inclusion that would undoubtedly undo much of what has been achieved up to now, through hard work and commitment. The Government want an inclusive education service to offer excellence and to offer choice, but one size does not fit all and some children need the support that special schools provide.

Perhaps I may pick up what the noble Lord, Lord Baker of Dorking, said, in mentioning the briefing from the NUT. We must not ignore the concerns of teachers. After all, it is the teachers who must take up the challenge that inclusion presents. I am pleased to say that they support inclusion and want to make it work, but they know that inclusion can sometimes be far from easy. Like us, they believe that inclusion would not work if it were to jeopardise the interests of all children because of a doctrinaire position.

When we consulted on the Bill last year, we deliberately sought the views of children too. Some children who have statements told us that they would have preferred to attend a mainstream school, but not if that had set them up to fail. Others felt strongly that special schools were needed.

I should like to reassure the noble Baronesses, Lady Sharp and Lady Darcy de Knayth, and my noble friends Lord Ashley and Lord Morris, as well as the noble Lord, Lord Rix, that we shall use the guidance that will back up the new inclusion framework to which schools and LEAs have to have regard, to underline that a mainstream place should be refused only in a very small minority of cases. Maintained schools and LEAs will only be able to argue that a child's inclusion would be incompatible with the efficient education of others if they can also show that there are no reasonable steps they can take to prevent their inclusion from having that effect. They will have to demonstrate clear evidence as to why that could not be done. The guidance will ensure that schools and LEAs cannot abuse the inclusion framework and close their doors to pupils who would benefit from a mainstream place.

In seeking to reassure the Committee that we shall not allow the inclusion framework to be abused, it is worth spending a few moments looking at the type of pupils for whom we believe inclusion may not be appropriate. In doing that, I hope I answer the point raised by the noble Baroness, Lady Sharp. We believe that where it can be clearly demonstrated that a child's behaviour is so challenging that the safety of other children cannot be guaranteed, a mainstream place should not be provided. Also, where a child's behaviour significantly disrupts the learning of others, his inclusion would be incompatible with the efficient education of others. I am not talking here about children who have an occasional temper tantrum or outburst. Rather I am focusing on pupils who persistently and systematically disrupt the learning of other children.

Where a child has been abused and is himself an abuser, again his presence in a mainstream school would, in our view, place other children at an unacceptable risk. The only way that other children could be protected would be for that child to be chaperoned continuously. That is not inclusion. I hope that Members of the Committee agree that it is unlikely to be in anyone's interest.

Where a child's inclusion would mean, even with other support, that the teacher had to spend a greatly disproportionate amount of time with the child in relation to the rest of the class, it would be possible to demonstrate that the efficient education of others could not be safeguarded.

I remind the Committee that our proposals received broad support when we consulted on them last year when 60 per cent of those who responded on inclusion felt that we had the balance right between promoting it and safeguarding the interests of all children.

Our plans are also very much in line with the Disability Rights Task Force's recommendation in its report which stated that, in reviewing the statutory framework for inclusion, the Government should strengthen the rights of parents of children with statements of SEN to a mainstream placement, unless they want a special school and a mainstream school would not meet the needs of the child". Our proposal to strengthen the right to a mainstream place for children with statements represents a significant step forward. We believe that we are striking the right balance.

I now turn to Amendment No. 14 and respond to what my noble friend Lord Ashley of Stoke said. The amendment seeks to alter the qualification of the second caveat: rather than the test of securing a mainstream place being that it would not be compatible with the "efficient education for other children", the test to secure a mainstream place would be that inclusion would not be compatible with the "efficient education of all children". It is my belief that such an amendment would result in fewer children with statements of special educational needs securing a place in a mainstream school, not more, as I believe the noble Baroness, Lady Darcy de Knayth, has recognised. It would end up being an anti-inclusion, not a pro-inclusion, provision.

The Government are clear that the "efficient education of other children" caveat is about looking sensibly at the impact of a particular child on the learning and safety of other children alongside whom he or she might be educated. It is the other children in the class, or perhaps in a year group, whose interests we are seeking to preserve. The interests of the child with SEN are protected by the SEN framework, including the other provisions of Section 316. That will be set out in our guidance and I have already given the Committee some examples of how the provisions would work in practice. If we were to use the word "all", the scope of children that it would be necessary to consider would be much wider. The result would be fewer children with statements of special educational needs in mainstream schools. I am sure of that.

Does the word "all" refer to all the children in a school, or perhaps all the children in an LEA, if we took it to the ultimate conclusion? The Government do not want a school to be able to refuse to admit a child in year seven simply because that child might at some point in his school career have a negative encounter with a child in year 12. The provision is about assessing the impact of a particular child on the learning and safety of his direct peers. It is not about assessing every possible interaction that a child might have with any other pupil at a school and using that as a reason for refusing admission to the child. I know that my noble friend Lord Ashley of Stoke wants to see more children in mainstream schools and I hope that he will accept that the present wording is more likely to achieve that aim. I agree with the noble Lord, Lord Northbourne, and with the noble Baroness, Lady Blatch. We do not always agree, but I strongly agree with her on this occasion that we need the kind of flexibility to which she referred. In the light of what I have said, I hope my noble friend, Lord Ashley of Stoke, will feel able to withdraw his amendment.

Lord Ashley of Stoke

This has been an excellent debate. As we will be returning to my Amendments Nos. 13 and 14 later, and in view of the clock and the number of amendments, I beg leave to withdraw.

Amendment, by leave, withdrawn.

Clause 1 [Education in mainstream schools of children with special educational needs.]:

Baroness Blatch moved Amendment No. 2:

Page 1, line 11, leave out ("who should") and insert ("whom the parents of that child wish to")

The noble Baroness said: I welcome this opportunity to go back and build on two important Acts—the Education Acts of 1996 and 1993. This is a welcome opportunity to revisit some of the measures in those Acts and to improve on them. The words in the amendment are used in Section 316 of the 1996 Act.

I am concerned that there is no reference to who should decide whether a child should be educated in a school. Most of us agree that most children should be educated in a school; there is not much between us on that. The alternative is for them to be educated at home by tutors, portage schemes or whatever else is available to enable parents to educate their children at home. Of course, the law allows for that.

In my village, a family has educated a young person with ME. Sadly, three people in the family have suffered from ME over a long period, and the child I refer to who was successfully educated at home simply could not cope with a mainstream school. It was fortunate in this case that one of the parents was a teacher who devoted much of her life during that period to the task, with help from outside, including from the local authority and from the her own school. In order for us to emphasise at the outset that the wishes of the parents—and of the child if they are old enough—are paramount, the amendment would replace the decision of someone unknown with the wish of the parents on whether their child is educated in a school. I beg to move.

Baroness Blackstone

Amendment No. 2 aims to strengthen the parent's right to educate their child outside the school system. All parents enjoy that right, which is protected by Section 5 of the Education Act 1996 and by the current defence framework.

The current wording of Clause 1 continues to protect that right. However, it depends on the parents providing an appropriate non-school based education. Where a child has special educational needs, such provision is sometimes very complex and far from easy. However, the Government do not feel that it is appropriate to change the existing provisions, which ensure that every child receives an appropriate education. I suspect that the noble Baroness, Lady Blatch, would accept that that is desirable. I hope she will agree that the present provisions cover what she is asking for.

We have reflected the existing situation in the Bill. Where a child has special educational needs, it is especially important that he or she gets an appropriate education so that he or she has the best chance in life.

I add also that school-based education may not be appropriate in a number of situations. I accept what the noble Baroness has said. However, there are examples where children may be receiving psychiatric treatment in secure accommodation. It could not be said that they should attend school, even if it is what their parents wanted. Although I am sure it is not the intention, the effect of the amendment would be to allow parents to insist on mainstream education in a situation of that kind. Therefore, the existing provisions protect the right of parents to educate a child in a non-school situation as long as that education is appropriate.

I hope that in the light of what I have said, the noble Baroness, Lady Blatch, will feel able to withdraw her amendment.

4.15 p.m.

Baroness Blatch

First, the answer of the noble Baroness is helpful but I go back to the words in the Bill which states: This section applies to a child with special educational needs who should be educated in a school". I take what the noble Baroness is saying, that that is not so rigid that there is no other alternative and that somewhere else in statute there is the provision that protects the right of the parent to choose not to have a child educated in mainstream. The caveat is always there. As long as it is consistent with the educational needs of the child, the right to do that is fully protected. I believe that the noble Baroness agrees with that and that an official behind her also agrees with that. If that is the case, I shall read very carefully what the noble Baroness has said and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Northbourne moved Amendment No. 3:

Page 1, line 13, after ("child,") insert ("and it is in the child's best interests,")

The noble Lord said: The Children Act established the principle of the best interests of the child. I suggest that to pass the Bill without reference to the best interests of the child would be a retrograde step. The child's interests are not necessarily reflected in the wishes of the parents, especially not in cases of, disability. Sadly, and I have had this experience a number of times, parents are unhappy about the disability of their child and they try to persuade themselves that the child has less of a disability than it has. The wishes of the parents, therefore, are not necessarily a reliable measure of the best interests of a child. The best interests of a child can be established. The principle has been accepted and has worked in relation to the Children Act.

Amendment No. 3 relates to a child with no statement. For such a child there is no option and, however unsuitable a mainstream school may be for that child, to a mainstream school he must, go. The noble Baroness may say that such a child will be statemented and the answer to that is—I can only think of it in what I believe is now called estuary English—get real. The reality is that it takes up to two years to get a child statemented in some local authorities, partly because there is a shortage of psychologists, and partly because the local authorities do not want children to become statemented, because when they do, they have to pay for them to go to a special school. What happens to that child over those two years? He will sit at the back of the class, not understanding what is going on and possibly being disruptive. So my amendment would solve that problem in one shot. I beg to move.

Baroness Blatch

It may be appropriate for me to speak next as this amendment is grouped with my Amendments Nos. 5 and 22 to 26. My Amendment No. 5 deals children with special needs but who do not have a statement. There is a point to be made here and I seek the Minister's reaction to it. Children with special needs who are not statemented should enjoy the same attention and the same consideration as to what is and what is not appropriate as those who have statements. Clearly, the child with a statement has particular needs which are more serious than the child with special needs who is not statemented. Therefore, it really is a matter of equality. It is putting all children on the same footing so that all children receive the appropriate consideration that is consistent with their educational needs, consistent with their educational needs.

An exemption from having to be educated in a mainstream school is permitted during the period a child has been admitted to a special school for the purpose of making an assessment of that child. I accept that; it is fair. However, that exception is granted only with the agreement of the local education authority, the head teacher of the mainstream school, the parent and anyone else who is authorised to give advice.

If the child has been admitted to a special school for an assessment, all concerned with that child will have agreed to such an assessment being made. That is the whole point; that can be done only by agreement. Therefore, we do not need the bureaucracy and the delay of seeking agreement from all of those people, or ascertaining whether they disagree. My amendment leaves all of that out, with the exception, of course, of the agreement of the parent. If I were being really strict about this, it would not even be necessary to include the agreement of the parent because the parent should already have agreed to the assessment at a special school. However, for the sake of anyone who thinks I am anti-parent in these matters, I have chosen to leave that in and put beyond doubt that the parents' wishes are well and truly met. The measure I oppose would be bureaucratic and would allow for the sort of delays to which the noble Lord, Lord Northbourne, has just alluded in a different context. Anything that adds to bureaucracy or which inhibits the progress of the assessment and getting the child back into mainstream education should be avoided.

Baroness Sharp of Guildford: I speak to Amendment No. 3. The term, the best interests of the child has worked extremely well in terms of the Children Act. The paramount interest in all these cases should be the best interests of the child. This applies both to those who are statemented and to those who are non-statemented. It is unfortunate that the term, the best interests of the child has not been included on the face of the Bill. I therefore support the amendment.

Lord Davies of Oldham

Perhaps I may begin by reiterating the Government's policy on children with special educational needs who do not have statements. We believe that these pupils can be, and are, successfully provided for within mainstream schools. Many noble Lords present have visited schools where this is done successfully.

For pupils with special educational needs but no statement the Bill simply seeks to reflect the current arrangements for maintained special schools. This has not been a contentious issue. So there can be no confusion about when a child who does not have a statement can be placed full time in a special school, we have sought to set out the exceptional circumstances on the face of this Bill. Currently they are set out within the Education (Maintained Special Schools)(England) Regulations 1999.

The circumstances are as follows: the child is being assessed for a statement; the child's circumstances have changed—in both cases the agreement of his parents, the school, LEA and, where a child is being assessed, anyone advising on the statement, is required—or the child is in hospital and is attending a special school within the hospital. We believe that these provisions are appropriate and provide sufficient flexibility to ensure—this point has been made by several noble Lords—that the interests of all pupils must be taken into account.

I should like to turn to the amendments within the group. Amendment No. 3, in the name of the noble Lord, Lord Northbourne, would allow children without a statement of special educational needs to argue that it was not in their best interests to attend a mainstream school. Amendment No. 5, in the name of the noble Baroness, Lady Blatch, would mean that children with special educational needs but without a statement of SEN should not attend a mainstream school without the agreement of parents. The role of mainstream schools in meeting a child's special educational needs is clearly set out in the current and revised code of practice. The provisions in the Bill relating to the exceptional circumstances where pupils without a statement can attend a special school reflect the existing circumstance. Maintained special schools will accept children without statements only in these circumstances. The Government are firmly of the view that a child without a statement of special educational needs should go to a mainstream school except in the exceptional circumstances set out on the face of the Bill—or, of course, where his parents choose to educate him outside the maintained sector.

Amendments Nos. 26 to 28 seek to change the exceptional circumstances to which I have just referred. Amendments Nos. 22 to 24 remove the requirement for the consent of the LEA or head teacher or other professional staff. Any change can be unsettling and moving a child to a special school for the purpose of assessment would be a significant step for all concerned. Such a decision must not be taken lightly and should be reached with agreement from all those involved—the LEA, head teacher, parents and professionals—who have the child's interests in mind and who have a real contribution to make to the wellbeing of the child. Equally, we believe that following the child's assessment, decisions about his or her placement should not be taken in isolation by parents but with the agreement of all concerned.

Amendment No. 26 seeks to accommodate the wishes of the child before he is placed in a special school. This point is a recurring theme throughout the Bill and an important one, as it has implications for pupils well beyond the scope of the Bill. I can assure Members of the Committee that the revised SEN—

The Deputy Chairman of Committees

A Division has been called. The Committee stands adjourned until 4.39 p.m.

[The Sitting was suspended for a Division in the House from 4.27 p.m. to 4.39 p.m.]

Lord Davies of Oldham

I have no doubt that the Committee will be relieved to hear that at the enforced interruption, I was in any case coming to the conclusion of my argument, having dealt with the amendments. I wanted to assure the Committee that the revised SEN code of practice, which will in due course be placed before Parliament for approval, will make clear that the views of the child should be taken into account wherever possible, including in the statutory processes for making assessment and statements.

LEAs and others will, by law, have to have regard to the guidance. We consider this to be the most appropriate way forward. Having heard my reasons and reassurances, I would ask the noble Lord to withdraw his amendments.

Lord Lucas

Perhaps I may say something in support of the noble Lord, Lord Northbourne, and refer to something which has not been answered by the Minister. Why should it be part of subsection (2) that although it is not in the best interests of the child to be educated in a mainstream school, nevertheless that is what must happen? Why should this part of the legislation in relation to children not be based on the best interests of the child when all other legislation connected with children is so based? It may be an exceptional circumstance but why should, under those circumstances, a child have to be educated in a place which is not in their best interests?

Lord Northbourne

That is exactly the same question that I was going to ask. It seems to me that the special educational needs code of practice will not work because this Bill says that child must go to a mainstream school.

Lord Davies of Oldham

The Bill states that the Government's policy is that the child should go to a mainstream school in all circumstances except under the exceptions outlined in the Bill. That is because we appreciate the general argument that as far as possible, children with special educational needs should be included within the framework of our main schools, as part of our general policy of inclusion. We state that as a fundamental principle upon which this legislation is based.

Lord Northbourne

I am grateful to the noble Lord for that explanation, although I do not necessarily accept that it is always to the child's benefit. The point I wish to make in connection with my amendment, before I withdraw it, is this: there are mild forms of disability and I have particularly in mind Asperger's syndrome, of which I have knowledge in the school where I am involved. A sympathetic school can cope, depending upon the size of the school, with one or two children with Asperger's syndrome. If that number rises to eight or a dozen, then the interaction between them and the difficulties imposed on the staff begin to affect the education of both those and other children in the school.

As the Bill is written, if a particular mainstream school has applications for one, two, three, or any number of children with Asperger's syndrome, it will have to accept them. The result of this will be that if a school does well for Child A and Child B with Asperger's syndrome, people are going to hear about it and parents of other children with Asperger's syndrome will want them to go there. Thus, the school will find itself with an influx of children with that particular disability, which in itself is not to the benefit of the child, let alone of the other children in the school or of the teachers.

Lord Lucas

The noble Lord did not really answer my question at all. In the circumstances where it is not in the best interests of the child that he should be at mainstream school, why are we passing legislation which forces him to be at a mainstream school? All our legislation in relation to children now provides that authorities must act in the best interests of the child. In this legislation, that is not so and here we are, forcing a local education authority to act otherwise than in the best interests of the child. I know that there can be exceptional circumstances but why are we doing this? If the noble Lord cannot answer that now, could be at least write to me?

Lord Davies of Oldham

I certainly undertake to do that, if the noble Lord thinks that the explanation I have given is unsatisfactory. We recognise that there is a great deal of work to be done on this Bill but the answer to the general question—that indicated by the noble Lord, Lord Northbourne—is that the local authorities will of course be charged with the responsibility of ensuring the proper education of all their children. If, therefore, the inclusion of too many children with a particular disability would tilt the balance against the effective education of the children already there, then that is covered by the provisions in the Bill. That is the basis on which we give local authorities responsibility for education in this country.

4.45 p.m.

Baroness Blatch

Perhaps I may follow up the answer given by the Minister today and the answers given by the noble Baroness, Lady Blackstone, in reassuring me that there can be exceptions to mainstream education. Those provisos are a critical part of the Bill. The Bill states: must be educated in a mainstream school". I believe that the aim should be consistent with the educational needs of the child. If the educational needs are met, the interests of the child are met. However, it is inconceivable that we are passing a Bill that allows for such flexibility, as the noble Lord, Lord Lucas, said—for education to be provided which is not in the interests of the child.

Given that it is such an obvious statement, why is there such resistance to accepting an additional statement which puts beyond doubt that the provision should be in the interests of the child? That would subsume my concern about it being consistent with the educational needs of the child.

Lord Addington

Having listened to the argument, I believe that noble Lords are right. Something about the best interests of the child should be on the face of the Bill. I suggest that a small amendment would at least clarify the situation. We are arguing about inches here and that is a way to waste vast amounts of time.

If the Government can give an undertaking about the legislation we should be much happier. Having such a provision on the face of the Bill is better than having it in guidance or codes.

Lord Davies of Oldham

The issue with which we are concerned is the concept of the best interests of the child. It is a rather widely-based phrase. Within this framework, it would indicate that the child had an absolute right to a place outside the mainstream sector. It is breadth of the conflicts of the best interests of the child that causes us some difficulty.

We believe that it is in the best interests of non-statemented children to be in the mainstream school. Who would define the best interests of the child if partners are involved in the successful education of a non-statemented child? Would it be identified as one particular group, or would a range of people have that issue in hand? It is the breadth of the proposal which is unacceptable to us within the framework of the Bill.

Lord Ashley of Stoke

There may be some misunderstanding here. I wonder whether my noble friend will kindly reflect on what has been said and undertake to think about the matter before the next stage of the Bill.

Lord Davies of Oldham

I am grateful for that contribution. I recognise that there is anxiety among Members of the Committee and a desire for greater clarification. I shall indeed reflect upon it. We shall have a chance to deal with this issue subsequently.

Lord Northbourne

I am most grateful for that assurance. In view of the support for the idea, we shall either have to discuss it or I shall have to bring it back at the next stage of the Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 4:

Page 1, line—leave out ("educated") and insert ("registered")

The noble Baroness said: I can be brief on Amendment No. 4. It is clear that the purpose of subsection (2) is to put all non-statemented children into mainstream schools. The Bill states that the child must be educated in such a school. We have debated that and talked about the flexibility of such a system. However, that wording again excludes the possibility of the child receiving some or even most of the education in the mainstream school but also receiving specialist education commensurate with the child's learning difficulties outside that school but not necessarily at a nearby specialist school. Therefore, my amendment is within the spirit of what I believe the Government's intentions are, but by referring to "registered" instead of "education"—in other words, there would be a commitment to the child being educated at a school—the child would be registered at the parent school. That would leave open the possibility of some of the child's education being conducted elsewhere. The exemptions granted by the Government in section 316A apply only for temporary admittance to a special school. They do not cover a situation in which the child is based at one school but attends other schools for certain lessons or therapy. Some schools may also provide specialist education—not special school education, but specialist facilities—when a child moves from one school but remains registered at a parent school. The amendment would not change the substance—it says that "registered" would subsume all the other alternatives. I beg to move.

Lord Addington

I would never take it upon myself to say whether the drafting of any amendment was correct. However, if the noble Baroness is right, the amendment would allow the use of other schools and the pooling of resources. It is a common practice to go to certain schools for certain specialist types of back-up help. We seem to be encouraging the old-style special schools to become places where we provide resources that allow people to spend more time in mainstream schools. If the noble Baroness has correctly spotted something here, I hope that the Government will be supportive, because the idea of keeping most people within the mainstream sector for the longest amount of time may be served by using the special school sector, with its greater expertise and resources, as back-up. The noble Baroness seems to be calling for good practice to be encouraged.

Baroness Blackstone

I believe I can be helpful. We know that many mainstream and special schools already work together. We have been encouraging far closer links between the two sectors as an integral part of our inclusion strategy, developing the use of dual placements, which is probably what the noble Baroness, Lady Blatch, wants, as part of the outreach role that we want all specialist schools to play. They have an important role in helping mainstream schools to become more inclusive. They should share their expertise and knowledge for the benefit of all pupils.

The vast majority of dual placement support pupils have statements, but it may sometimes be appropriate for a child without a statement to spend some time away from his mainstream school. Again, I believe that the noble Baroness, Lady Blatch, had that in mind. However, where a child who has special educational needs but does not have a statement is supported by a dual placement, we would expect the child to spend most of his or her time at the mainstream school. There are many examples up and down the country of a child who is registered at one school spending part of his or her time at another, often a special school. It has been very effective in helping both pupils and schools. Therefore, where it is appropriate and in the child's best interests, we certainly agree that dual placements should be used. Last September we launched an initiative with an interactive CD-ROM package called "Connecting Schools for Inclusion". It is a practical training resource so that schools and LEAs can help teachers who are interested. One of the video case studies featured in that package looks at dual placements.

I hope that noble Lords agree that it would be far from satisfactory for a parent to gain a place for a child at a mainstream school, only to find out that the school did not intend to educate the child, but proposed to send them elsewhere.

Section 317(4) of the Education Act 1996 requires maintained schools and maintained nursery schools to secure, so far as reasonably practical, that children with SEN engage in the activities of the school together with those who does not have SEN. I hope that the noble Baroness will feel able to withdraw the amendment.

Baroness Blatch

I thank the Minister for her reply. Two things occur to me. One is that the need for a consolidation Act for special needs is growing almost daily. We are not just cross-fertilising with the 1993 Act and the 1996 Act but we are also cross-fertilising within this Bill. A number of amendments have proposed changes to the wording. We have been given helpful and accommodating answers. We have been told, "Do not worry. This matter can be resolved by means of some other statute or by another part of the Bill".

New Section 316(2) states: If no statement is maintained under section 324 for the child, he must be educated"— it does not say registered— in a mainstream school. The new section does not refer to the interests of the child. That does not suggest flexibility. However, in response to every amendment that has so far been proposed, the Ministers have been helpful. They have said, "Do not worry; these things can be accommodated". People in the education service will have to interpret the legalese in this statute. For goodness sake, let us have some consolidation.

I shall read what has been said about the amendment. The educational needs of children who are registered will be met in a variety of ways. Their needs may be met by an individual specialist provider or they may be met at another school or at home. There are so many ways of meeting the needs of the child. Therefore, in this context "registered" would be a more appropriate word than, "educated". The latter term seems rather ineffective to me.

Lord Lucas

Before the noble Baroness withdraws her amendment, will the Minister, now or in a letter, point out which section of which Act governs the interpretation of the words educated in a mainstream school to allow that mainstream school to subcontract part of the education to a special school, or to some other institution, to make possible what the noble Baroness said would be allowed to happen?

Baroness Blackstone

I shall certainly write to the noble Lord, Lord Lucas, and give him the precise section.

I should like to apologise to the Committee. The speaking notes I have been given are completely out of order and the last paragraph was complete gibberish! I was amazed that no one picked it up, but it did not relate to what I was meant to be saying. I sincerely apologise.

I wanted to give an example of where dual placements had worked. Beaumont Hill School and Technology College in Darlington—a special school—has done pioneering work in this area. The video I mentioned earlier shows how pupils can flourish by using dual placements. I reiterate what I said at the beginning; namely, we do not think that there is any reason to change primary legislation where something is already operating in exactly the way that the noble Baroness would wish. I hope that the noble Baroness will accept that the Government are absolutely committed to this measure and that it is already provided for.

Lord Rix

Before the Minister sits down, will the letter which she has promised to write to the noble Lord, Lord Lucas, be circulated to those present because we all have a vested interest in the answers?

Baroness Blatch

Of course I shall withdraw the amendment. However, even as regards the example that the noble Baroness has given, I would say that in practice the child is not being educated wholly at one school. The child is registered at one school for the purpose of having a parent institution, but nevertheless is being educated in two places. That is the particular point I am making in this amendment; namely, that the child should be registered but not necessarily educated only at one establishment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch had given notice of her intention to move Amendment No. 5:

Page 1, line 13, at end insert ("unless that is incompatible with the wishes of his parent")

The noble Baroness said: We shall return to this matter but at the moment I shall not move the amendment.

[Amendment No. 5 not moved.]

5 p.m.

Lord Baker of Dorking moved Amendment No. 6: Page 1, line 15, after ("child,") insert ("and education in a mainstream school is appropriate and can meet the needs of the child,").

The noble Lord said: The purpose of this amendment is to allow the Committee to examine for the first time what constitutes appropriate education and also possibly to debate the resources that are needed in order to provide that appropriate education.

I hope that Ministers will not hide behind the argument that "appropriate education" is difficult to define, because in the speeches they made this evening, both have used the phrase "appropriate education". So it is quite clear that they must know what "appropriate education" is, if perhaps the wider world does not.

By "appropriate education" I would mean education that can be provided for a child that is appropriate to the child's needs. In his reply a moment ago, the Minister said that the Government's policy is that all children who do not have statements should be educated in mainstream schools.

First, on the question of statements, there are 150,000 children in the three constituent parts of the United Kingdom who have statements and 40 per cent of those go to special schools, either maintained by the local education authority or independent schools, one of which I am associated with. That has dropped from 50 per cent to 40 per cent over the past 20 years dropped and I think that that is regrettable. The equipment and expertise that is available in special schools is often quite difficult to replicate in mainstream schools—not impossible but difficult—and movement away from special schools over the past 20 years has been from two motives. One is that special schools are very expensive and, secondly, one wants to see more children included in rather than excluded from mainstream schools, if that is appropriate.

On the question of what is appropriate, there has been a very interesting brief from the Royal National Institute for Deaf People which cites the particular case of a child who has mild to moderate hearing loss.

That child is unlikely to be statemented. So when the parents realise that they have a child who has moderate hearing loss, they will have to go into a long learning process. The parents of the children who are statemented become very familiar indeed with what is "appropriate education". In the process of fighting for appropriate education for their children, they learn an awful lot about the specialist teaching that is required, the specialist equipment that is required for deaf children, for visually impaired children and for children with physical difficulties.

However, for the parents of children whose loss is less serious, it is a difficult learning process. For example, a parent who has such a child should be given detailed information by the local education authority. It says in the brief that they should be told of the acoustic environment in the school to which the child is going; they should be told whether there is an installed sound field system and whether induction loops are available. That is the minimum information provided for the parents by which to judge whether or not the education is appropriate. As the disability gets more serious, they will require even more information.

One knows perfectly well that there has been a major improvement in the provision of special education equipment and teaching in mainstream schools over the past 20 years. However, I believe that the Government underestimate—not wilfully and deliberately—the cost of the consequences of the Bill. To provide appropriate education for children who are not statemented in mainstream schools will be a very costly process indeed. If one examines the amount of money which is spent on special education, something like 20 per cent of the school population are deemed now to have special educational needs of one sort or another and about 2.5 per cent of children are statemented. That is a huge proportion and in some boroughs it is even higher.

I was amazed to read that, for example, in the London Borough of Tower Hamlets only six schools have fewer than 20 per cent of children registered with SEN; 24 schools have more than 20 per cent of children with SEN; 18 schools have 30 per cent or more; seven have well over 40 per cent; and one has 55 per cent of children with special educational needs. That is an area that has acute social needs. The fact that many of those children come from diverse racial and ethnic backgrounds intensifies those needs, but that is an enormously high proportion. Considerable extra funding will be required to cope with that sort of situation. Even in an average LEA where the proportion is 20 per cent, a good deal more money will be needed. I know that the Government have provided more funds, but one can take an estimate. One unnamed local education authority whose figures I was sent spent £26 million—a highly significant 19.2 per cent of its annual budget of £135 million—on special educational needs. The Bill is likely to increase that requirement. The parents have to be satisfied—both those who have statemented children and those who do not—that the education is proper and appropriate.

We shall deal later with the relative lack of comparative information on what is available. I shall strongly support the Liberal Democrat amendments that we shall come to later dealing with the provision of special reports by inspectors. I have tried to find some comparative data on the provision in an LEA special school, in a private special school and in another LEA school with similar problems. Regrettably, it is almost impossible to find such a comparison.

We all want to be satisfied that when a child goes to a mainstream school, with all the advantages to be gained from that, the services, teaching support and equipment are there. I do not intend to go over the figures and examples that I gave at Second Reading, but a study conducted by the Royal National Institute for the Blind showed that, with the best will in the world, certain local education authorities had not provided the exam papers in a form that blind children could cope with. There was insufficient equipment, which is expensive. Moreover, barely six months pass without new equipment becoming available for the visually impaired or the deaf. One can see an example in this Committee of the enormously expensive equipment needed. To replicate that or similar equipment throughout several mainstream schools is going to be very expensive. It is an expense that we should meet, but it is important to be aware of what is appropriate education.

The purpose of the amendment is to give the parents more precise information on the facilities that are available for their child and to ensure that that child is allocated and sent to a particular school. Those facilities must be genuinely and properly appropriate to the needs of that child. That is highly demanding. In many cases, that requirement is met, but much more comparative information has to be provided so that parents can be satisfied that all the alternatives have been explored and that their child is going to get the best education that society can provide.

Baroness Blatch

My Amendment No. 15 is coupled with this one. The noble Lord, Lord Baker, has covered all my points. He has moved on beyond the word "appropriate" and coupled with that the importance of making sure that the support is there for people when they are placed in mainstream education. These are the first of many amendments that we are likely to discuss on the issue. It has been said in informal meetings that, however well intentioned the Bill is, it is not a cheap option for any Government. Delivering the provisions properly and effectively will be costly. If we are going to raise the hopes of parents and their children who have special needs and bring about the shift that I know the Government want from special schools into mainstream, we must bear in mind and reinforce the points made by noble Lord, Lord Northbourne, about the strain under which many schools currently operate, with teacher shortages, four-day weeks and other difficulties.

It is one thing to put upon them an obligation which I know teachers will welcome—the noble Baroness herself has said how much the teachers want this Bill to work—but it will not work if they do not have the properly support. It is important to add to Section 3 that if the statement is maintained under Section 324 for the child, he must be educated in a mainstream school, unless that is incompatible with the wishes of his parent or the provision of efficient education for other children. But we must also add provision for the necessary support for that child.

I support my noble friend Lord Baker when he said that we must make sure that whatever the provision is, it is appropriate to the needs of the child but it should also properly support the staff who have to provide it, and also be in the interests of the children.

Lord Rix

Perhaps I may ask the noble Lord, Lord Baker of Dorking, a question. Does this wording not provide yet another further excuse? I fully sympathise with the intention of his amendment and that spoken to by Baroness Blatch. What worries me is that in relation to the provision of necessary support to meet the needs of the child, the education authorities may say that they cannot meet the needs of the child and that they do not have the necessary funds to provide the necessary support for the child. Does that not give them an excuse to get out of it even more than at present?

Lord Baker of Dorking

I do not think that it is an excuse. I am trying to establish a right. It is not an excuse to say, "We will shrug it off. We cannot possibly do it". I am trying to ensure that parents have the right and ultimately the child has a right—and that is the subject of the next group of amendments—to appropriate education. That is what the child's right should be. It is up to the LEA to satisfy the child and the parents that that education is appropriate. If they cannot be satisfied, that child should not be sent to the school.

Lord Ashley of Stoke

The noble Lord, Lord Baker, has just made a very interesting speech, as indeed he did at Second Reading. I hope that the noble Baroness will accept this amendment. Without proper provision for children, that child's education will simply not proceed. I do not agree with my noble friend Lord Rix about the possible objection that can be raised to the amendment. Local authorities will not put forward that kind of excuse and the provision is absolutely vital.

The noble Lord, Lord Baker of Dorking, is also right—this is dangerous for a Labour Peer—in demanding more money for the provisions. I am aware of the Chancellor of the Exchequer's influence, but the case is indisputable. I do not expect the Minister to give a positive, easy answer to that, but I should like my views to be recorded. I strongly support the noble Lord.

Lord Northbourne

I should also like to support the noble Lord, Lord Baker of Dorking, but on the condition that the provision he describes is not provided at the expense of other children.

Baroness Sharp of Guildford

I too support the noble Lord, Lord Baker of Dorking. It is right that we should recognise that whatever is done must be appropriate and in the best interests of the child. In her response to the previous amendment, the Minister used precisely those words. I take on board the point made by the noble Lord, Lord Rix. Earlier we argued about the dangers of local authorities using excuses to exclude children, and I would hope that as the noble Lord, Lord Baker of Dorking, said, this would not be used as an excuse.

He made two points. There are occasions when other forms of education are more appropriate and we must look to the best interests of the child to see what is necessary. Secondly, we also need the resources. Like the noble Lord, in my Second Reading speech I warned that the Government were not taking account of the need for necessary resources.

I point again to the Explanatory Notes where provision is made for the access arrangement under the disability part of the Bill. However, there is remarkably little in the budget to meet the SEN provisions of the Bill, which will be considerable.

5.15 p.m.

Baroness Blatch

Perhaps I may I add one point to the remarks made by the noble Lord, Lord Northbourne. Everything has to be affordable and there will be a great tension here for money. The placement of a child in a mainstream school which is not supported to meet the needs of the child will impact on all the children. It involves not just the interests of the child whose needs will not be met but those of all the children. The alternative may be an even greater expense in mainstream schools. So the impact on other children may be greater if a child is placed without the appropriate support. In the interest of ensuring that the needs of all children are met, this is an important caveat.

Lord Lucas

I should like to illustrate that last point by referring to a case that I was discussing yesterday. A child with mild autism is in a mainstream school and has progressively over the past three years gone from being taught on his own for two hours to 23 hours because the teachers are not trained to deal with the child. As he has had more time on his own and less time with other pupils, he has become more disruptive and now the situation has reached a critical point and come to my notice. It is essential that we act in the best interests of the child. We must always think not that it is good automatically to be in a mainstream school, though I agree with the principle, but that it is good to be in a mainstream school which is properly equipped to deal with a child of that particular nature. It must meet his needs and make sure that he keeps up with his peers: that he does not become disruptive and emotionally damaged by always falling behind and always failing because the school is not equipped to deal with his particular circumstances.

I can see difficulties with the wording but we must make sure that in the Bill the interests of the child come first and not some principle—with which I agree—of how children should, in general, be taught.

Lord Pearson of Rannoch

I should like briefly to support my noble friend Lord Baker and emphasise perhaps the difficulty of human resource in our education system to meet the kind of burdens that will be placed on it by the Bill. A number of noble Lords have mentioned the financial resources which are, I submit, comparatively easy in this case. I have my doubts as to whether in the system at the moment, or indeed in training and on the horizon, there do exist enough qualified assistants and qualified teachers to meet the demands that the Bill may produce. I hope that I am wrong but I feel I should utter that as a word of warning at this stage of the proceedings.

Baroness Blackstone

We have had an interesting debate about these amendments and I am sympathetic to many of the things that have been said. However, before responding to some of them, we should remind ourselves what these amendments seek to do. They want to reinstate provisions similar to the first of the caveats of the existing Section 316 relating to the interests of the child. Our starting point in inclusion is that, with the right support—and I accept that that is a very important phrase here—nearly all children should be included in mainstream schools. We believe that the test of whether they are should be limited to what parents want and to safeguarding the interests of other children. I find it very odd that my noble friend Lord Ashley of Stoke and the noble Baroness, Lady Sharp—from what they were saying earlier they want an absolute right to inclusion—should support the amendments.

The first caveat of the existing Section 316 has often been used to refuse a mainstream place when we believe that sometimes the children would have benefited from a mainstream placement. Therefore, I must say that their support is strange.

I should add that parents are not always well placed to argue against such a judgment. We want an inclusive education system to offer genuine excellence and choice.

I understand some of the concerns that have led to the amendments being tabled. There may be worries that children's needs will not be adequately met. However, I believe that noble Lords will be reassured that by virtue of section 324 of the 1996 Act, to which the noble Baroness, Lady Blatch, referred, LEAs will have to ensure that the special educational provision specified in a child's statement is made. That is important. Statements of SEN will set out what support an individual child needs and what support will be provided. That applies whether a child is to be educated in a special school or in the mainstream. The noble Lord, Lord Baker, was right about the need to make it clear to parents what will be available. That is what will be required of local education authorities in an SEN statement. I hope that he will accept that.

A number of speakers also referred to resources. The Government accept that extra resources will be needed to make the legislation work. Extra resources are being provided. We are supporting expenditure of £82 million from the SEN standards fund next year, up from £55 million this year. That is a substantial increase and will go some way to providing the extra resources that are needed. Next year, schools in England will receive £540 million in direct grant to spend on top of the increase in the education standard spending, so a typical secondary school will receive about £60,000 a year more.

I entirely agree with the noble Lord, Lord Baker, about there being benefits as well as extra costs. That is a bill that we should meet. I believe that my noble friend Lord Ashley of Stoke referred to it being dangerous to make commitments about resources. I have to tease the noble Lord, Lord Baker. It may be particularly dangerous for a Conservative Peer to ask for a bigger commitment on resources, given that the Conservative Party has recently said that it intends to slash public expenditure, and education is not one of the areas that it wants to protect. Of course I accept that the benefits of inclusion involve higher costs, and the Government will provide the resources.

I hope that what I have said answers most of the points that have been raised. One point to which I have not responded is what constitutes "appropriate education". There is apparently no statutory definition of it. For a child with special educational needs, it will be the special educational provision suitable for his or her needs. That is enshrined in section 324 of the 1996 Act. "Suitable education" is education that prepares a child for life in modern society and enables the child to reach his full potential

Those are general statements, but what is appropriate for each child will vary greatly according to particular children's needs, so we need some flexibility. Children's individual needs as set out in their statements have to be met and will continue to be met.

Under Section 317, maintained schools—and LEAs in the case of maintained nursery schools—have to use their best endeavours to ensure that the special educational provision called for by a pupil's special educational needs is made in the school and that those needs are made known to the child's teachers. Of course, as I said earlier, parents, too, should receive a proper explanation of what can provided.

In the light of what I have said, and the fact that the decision to replace the first caveat of Section 316 is in accordance with the findings of the Disability Rights Task Force and with the great majority of those who responded to the Bill's consultation, I hope that Members of the Committee will accept that we have struck the right balance here, and that the noble Lord, Lord Baker, will feel able to withdraw his amendment.

Lord Pearson of Rannoch

I should like to press the Minister on the point I put to her about there being a possible lack of human resources in the system to deal with the extra special educational needs of children who may go into mainstream education. Is the Minister confident that the system actually contains the necessary extra teachers, LSAs and so on, of sufficient quality to handle this problem? I know the Government can throw almost any amount of money they like at it, but I am putting the point that it is not just a question of money. My experience would indicate that the people in the education system necessary to carry' this out simply are not there and, with the best will in the world, are unlikely to be there for a few years, whatever we do with initial teacher training.

Baroness Blackstone

Yes, I am confident, and perhaps I can reassure the noble Lord, Lord Pearson of Rannoch. The noble Lord is right to say that it is human resources that count, perhaps more than any other. Sometimes a great deal of emphasis is put on capital improvements but, in the end, what really counts is that the quality of the teachers and that extra support is provided. We are making practical arrangements to ensure that the teachers involved will receive additional training. Indeed, even at the initial teacher training phase, in order to attain qualified teacher status, all student teachers must demonstrate now that they can identify pupils with SEN; know where to go in order to give positive and targeted support; and are familiar with the requirements of the code of practice. That will be an intrinsic part of all teachers' training. Those requirements will be reinforced by induction arrangements too, which specifically require new teachers to demonstrate that they can plan to meet the needs of pupils with SEN and make a contribution to individual education plans. In addition, there need to be extra resources for additional helpers, which is what the extra funding that we are providing will, at least in part, be spent on.

Lord Ashley of Stoke

My objection was to the final caveat, which was a enormous loophole exploited by many local education authorities. That is not really comparable to this provision so I do not see any great inconsistency between what I said earlier, and what I said in supporting the noble Lord, Lord Baker.

Baroness Blackstone

The caveat that noble Lords want to see retained has been used to deny children mainstream places.

Lord Lucas

Perhaps I may continue the practice of quoting with approval from the National Union of Teachers from the Conservative Benches—long may it last! It says in its brief that: The union would welcome an assurance that LEAs would be expected to draft SEN statements that are precisely worded and which clearly define the additional resources and support that each child requires. The noble Baroness said something very similar in her reply. She said that statements will be clear and precisely worded, so that it is absolutely clear what equipment and resources the school needs to provide. However, they do not do that at the moment, under the existing legislation, and I am not at all clear where, in this legislation, there is any requirement that they should be clear—or at least clear to people other than the LEA; that is, clear to the general public, to the parents, to the school and to everybody else. There is no such requirement and I have seen no draft of any such requirement. Perhaps the noble Baroness will provide us with one.

Baroness Blackstone

No, it is not necessary to state such a commonsense provision as this on the face of the Bill. It will be clearly set out in the code of practice that SEN statements must be clear, readily understood, and set out exactly what is to be provided. It does not seem necessary for the Government to come up with an amendment of the kind that the noble Lord, Lord Lucas, is proposing.

5.30 p.m.

Baroness Blatch

Simultaneously with the production of the Bill there was a helpful letter from the Secretary of State, who changed his view about whether the provisions of the statement should be set out or whether they should be specific. Apparently that change was made and was very welcome to all concerned. However, there is a whisper in the background that when the code of practice is written, "specify" will be qualified, perhaps to "specify as appropriate". It should be unequivocal. The statement should specify.

Another point that came up again in informal meetings that we have held about the Bill is that statements often refer to what we all understand to be educational needs—reading, writing, computation and so on—but there are particular needs that relate to the education of people with specific difficulties. The noble Lord, Lord Ashley, referred to the issue of mobility and orientation for someone who has a sight impairment. That is as important an aspect of the education of a child with special needs as the issue of who teaches them to read, to write and to cope with all the other subjects in the curriculum. There should be a specific reference to the needs of the child in the statement to encompass that. Something will have to change in the code of practice, but it would be helpful to have a reassurance that the requirement will be to "specify", not to "specify as appropriate" the educational needs of the child.

Baroness Blackstone

It would be wrong for me to try to draft the code of practice here in the Committee. However, everything the Secretary of State said in his letter will naturally be followed up. I will take note of what the noble Baroness has said but the key issue is that the statements will set out the specific support that an individual child needs. We will make sure that that is clear in the code of practice.

Baroness Blatch

Although it will not be done through a statement, it is important that children with special needs who are not statemented should also have those individual needs met within the system.

Lord Baker of Dorking

I thank all those who have spoken to the amendment. I assure them that it is not a loophole or a caveat. I am trying to establish a right. Procedurally, I have to withdraw the amendment, and I shall do so, but I shall revert to them at a later stage in the Bill. I hope that when push comes to shove, I shall have the all-party support that we have had at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Brougham and Vaux): If Amendment No. 7 is agreed to, I cannot call Amendments Nos. 8 to 17 inclusive.

Baroness Sharp of Guildford moved Amendment No. 7:

Page 1, line 15, leave out from ("school") to end of line 19 and insert ("where it is judged in the best interests of the child and is in accordance with the ascertainable wishes of the child")

The noble Baroness said: Amendment No. 7 deals with two issues, one of which we have already discussed at length. I do not propose to return to the issue of the best interests of the child. I wish on this occasion to speak in favour of the voice of the child being heard. That is at the heart of what we are discussing today.

The question of whether the child's voice should be heard is well set out in the current SEN code. First, there is the principle that we should consult those about whom we are making decisions. Secondly, there is the pragmatic point that we know that whatever decision we make, there will be a greater commitment to the outcome if the child or young person concerned has been consulted. That does not necessarily mean that we do what the child wants, but that the child has been involved in the process and that their views have been taken into account.

As the Bill stands it is only the parents' views that are taken into account in the process of making a decision about whether a child is in a mainstream or a special school, which is Clause 1, and also during the statutory assessment process, which is the amendment to Section 232 in the 1996 Act, and again in drawing up that statement in relation to Section 324 of the 1996 Act.

I recognise, and from these Benches we recognise, that education legislation has not traditionally taken account of the child's views and recognises the parent, and not the child, as the client or consumer of education. However, the decisions being taken under this legislation affect the child in a very similar way to decisions taken under the Children Act. There is a very direct parallel here between the point at which the child's wishes have to be taken into account under the Children Act and the points at which these amendments seek to bring the child's views into the education decision-making process.

The term "ascertaining wishes" of the child is borrowed from the Children Act 1989. Under the Children Act, when particular decisions are being made about a child's future, agencies are required to take into account the ascertainable wishes and feelings of the child, considered in the light of his age and understanding. The vast majority of children are able to communicate their wishes directly. The Children Act wording recognises that some creative and imaginative approaches may be needed, for example with the wishes of the very young children being discerned by observing their behaviour.

Some children, at the discretion of some of the special educational needs tribunals, have spoken up during those tribunal hearings. Disabled children do not have an absolute right to participate in and attend the tribunal hearings, but, for example, 11-year old Andrew Downer was going to be forced to attend a special secondary school against his wishes, but he helped to put his own case to the tribunal and changed the opinion. Nicky Crane was also able to express his views on videotape to the tribunal, which was provided during the tribunal hearing. We feel that that is extremely important; that the children are frequently able to make their views known; and where that is the case, it is important that their views should be able to be heard.

Another point that is important is that some disabled children are not so fortunate as to have parents who support them in exercising their right to attend a mainstream school. Government have not made any provision for the situation where disabled children and parents disagree on the type of schooling and support needed. There is currently a legal duty in the Children Act for children to air their disagreements with parents through the family court proceedings, so why can that not happen where there are disagreements as regards education?

The draft code of practice makes it clear that the Government's intention is that greater account should be taken of the wishes of the child, and indeed, in speaking to an earlier amendment the noble Lord, Lord Davies, did make it quite clear that it was to be enshrined in the code of practice. From these Benches we feel that that is not good enough. We should like to see it on the face of the Bill. It is an important issue and it should be written on to the face of the Bill. I beg to move.

Lord Ashley of Stoke

I support the amendment in the name of the noble Baroness, Lady Sharp, and speak in support of my Amendments Nos. 10 and 61 to couple with her amendment. These are about the child's wishes having regard to his age and maturity. The child's views are obviously very, very important, and they are the people who know just what makes them happy.

We have had lots of briefings on all these provisions from the Special Educational Consortium and all the voluntary organisations, in my case the Royal National Institute for the Deaf. I should like to declare an interest as I will be quoting from those briefings as a president of RNID. I do not know if my noble friend knows anyone who is deaf but the RNID put forward the example of a child who may be profoundly deaf and who wants to go to a special school which has signing where he can consort with his friends and feel at home because the method of communication is the same as at home. This could be the child's wish. However, the parents may want the child to be educated in what they see as mainstream schooling. That is a kind of ideal, a kind of "normal school" in the eyes of the parents. There is, therefore, a conflict between what the child rightly wants and what the parents rightly want. Unless we ensure that the child's views are fully taken into account in the Bill, we shall get nowhere. There are pressures on the child and on the parent. I believe that the amendments I am discussing will get over this problem.

On the question of age and maturity, obviously the older and more mature the child, the more his views should be taken into account.

I would like to point out in closing that the United Kingdom Government are party to the UN Convention on the Rights of the Child which lays down that the child's views should be given due weight according to age and maturity.

Baroness David

My name is to Amendments Nos. 9, 39 and 40 and I very much wish to support strongly what the noble Baroness, Lady Sharp, has said. I raised this matter of hearing the children's voice at Second Reading, but the Minister did not make any response. So I hope today that we shall have a very full reply and a very sympathetic one. I think that it is a very important matter.

This whole group of amendments asks that the child's voice is heard when decisions are being made about school placements. The amendments include the assessment process and the review of the special educational needs statement. Similar amendments are on the Marshalled List and the noble Lord, Lord Ashley, has spoken to his.

My Amendment No. 9 is a probing amendment to gauge the support of the Government. I hope that, with the display of all-party support which is evidenced in Amendments No. 9, 39 and 40, the Minister will take it away and come back with a government amendment or a commitment to achieve the same end by secondary legislation.

It is currently only the parents' views that are taken into account in the process of making the decision about a mainstream or a special school during the statutory assessment and in the drawing up of a statement. These are times when decisions are being made which crucially affect the child and about which children may have strong views themselves.

The phrase, ascertainable wishes of the child is wording borrowed from the Children Act 1989, as the noble Baroness, Lady Sharp of Guildford, said. The vast majority of children will be able to communicate their views directly, but in the Children Act that wording recognises that there are other means such as watching behaviour and so on by which the views of the child may be interpreted.

The draft revised code of practice makes it clear that the Government's intention is that greater account should be taken of the views of children. I understand that this was broadly welcomed during the consultation period. The SEN tribunal proposes to take greater account of the views of children in coming to a decision on an appeal, yet in between the school stages and the appeal to a tribunal children's views drop out of the picture. The guidance in the draft revised code of practice on including pupils' views is not specifically linked or applied to the statutory stages, statutory assessment, drawing up a statement and making a decision about a mainstream or a special school. These three amendments are designed to ensure that the child's views are incorporated into statutory decision making stages.

The voice of the child is often absent when decisions have to be taken in education. It seems to be a concept that is not recognised in education law but the Children Act 1989 takes note of the views of children. Before a placement is made, the authorities have to ascertain the wishes of the child. There seems no reason why this should not be the case for an educational placement, the more so when a child has special educational needs. The confidence that it can give a child when he knows that his voice is being heard and acted upon can boost his morale and it can help a young person and assist those who have to decide on the placement. The LEA and school, with the parents' support, would make a better decision. The need to listen to the voice of the child is enshrined in the UN Convention on the Rights of the Child. Article 12 requires states to provide the child with the opportunity to be heard in an administrative proceeding. This does not happen at the assessment and statementing stage. It can happen at the school assessment stages and it can happen at the SEN tribunal. But why is there this gap in the middle where decisions are taken about the nature of the special educational provision for a child?

A child's views could be crucial over a decision to send a child to a special school or remain in a mainstream school and maintain existing friends. That is very important but, until we find a way of ensuring that the child's voice is heard, there is always the possibility that decisions will be made in ignorance of what the child wants. I think that that is very important for the future successful education of that child. I do think that these are important amendments and I hope very much that my noble friend can give a very sympathetic answer.

5.45 p.m.

Lord Rix

My name is down in support of Amendments Nos. 9, 39 and 40. However, the grouping has made it into a lucky dip. It is a question of which plum you pull out because they are so similar. Amendment No. 7 in the name of the noble Baroness, Lady Sharp of Guildford, is possibly preferable because it is the only one which talks about the best interests of the child, an issue to which we have returned again inadvertently.

I support the noble Lord, Lord Ashley of Stoke. I believe that the child's interests and wishes should be taken into account, particularly as regards whether that child goes to a specialist school or a mainstream school. The parents could well have philosophical prejudices against one school or the other. I believe that the child should be allowed to express his view.

Children with a learning disability are perfectly capable of expressing their views if only people give them the time and space in which to do so. Unfortunately, I do not believe that that is often done. I have handed to the Minister's officials some of the stories told by people. Simone Aspis handed these to me this morning. They tell some extraordinary stories of people with a learning disability having the greatest difficulty of either getting into a mainstream school or expressing their views. I hope that that is taken into consideration.

Lord Northbourne

This group of amendments is about the voice of the child. I agree with everything that has been said on the subject. As regards Amendment No. 8, I feel rather like someone who has got on the wrong train and has been carried off to Penzance when he meant to get off at Reading. There was a misunderstanding with the Public Bills Office and my amendment was intended to refer to "the best interests of the child" and not "the best wishes of the child". "Best interests" are equally as applicable to a child who is statemented as to a child who is not statemented. It seems to me that there is a drafting issue here. The Bill states at Clause 1(3)that, if a statement is maintained under section 324 for the child, he must be educated in a mainstream school unless that is incompatible with— (a) the wishes of his parent, or (b) the provision of efficient education for other children. Surely it should be the statement. If the statement requires him to be in a special school it should be mentioned. Alternatively, my best solution, the best interests of the child, would achieve the same objective.

Lord Morris of Manchester

I rise to support in particular amendment No. 10. In doing so, I have in mind the view of my friend, the admirable Simone Aspis, to whom the noble Lord, Lord Rix, has referred. Her problems as a child with special needs and her achievements since then are known to Members on both sides of the Committee.

My noble friend Lady David said that we should listen to the voice of the child. I ask the Committee today to listen, just briefly, to the voice of Simone. She states: It is accepted that disabled children's wishes should be taken into account when decisions are made about future family placements. Also children are able to present their evidence during criminal proceedings and listen to judicial review hearings in the High Court. So, she asks, why should they not give, evidence about what school they prefer or what support they need during a special educational needs tribunal hearing. Simone tells me that her parents forced her to attend a special school against her wishes. She hated her special school. She says: The education was sub-standard. There were limited opportunities for developing interests and making long-lasting friendships. She goes on to say: Incidentally bullying was rife. Children bullied each other all day, every day. This is because 'Special School' children have their self-esteem knocked out of them and the only way to raise it is to bully each other. She says, too, that when she asked her parents why they did not let her go to a mainstream school, they said it was because they were afraid of the professionals and the head teacher. She adds: Parents can be put under pressure to force their children to attend a special school. I put it to the Committee that Simone's view is one of considerable importance to us as we consider this group of amendments and, in particular, Amendment No. 10, which has my support.

Lord Baker of Dorking

I support the views of all Members of the Committee who have spoken to the amendments, particularly to the amendment of the noble Lord, Lord Ashley of Stoke. It is right to take into account the views of the child. The child could be 14 years-old and perfectly capable of making a judgment. I appreciate that some children will not be able to make a rational decision, but many will. Those who are profoundly deaf or seriously visually impaired will be able to make rational decisions; so will those with physical disabilities.

I very much hope that the Government will be sympathetic to this. I am no lawyer, but through the recent changes in the human rights legislation and the various courts that exist in Europe, it is possible for a child of 14 to go to a European Court and insist that he not be caned, and for the court to uphold that. I suspect that one is only waiting for a trial case if this right is denied to children.

I hope that the Minister will be sympathetic to the views that have been expressed on all sides of the Committee. I know perfectly well that all the amendments are somewhat botched and do not quite do the job properly, but the parliamentary draftsmen will have a chance of doing their own botching and getting it right.

Some children will want to go to special schools and others will want to go to mainstream schools. Their wishes will differ enormously and it will run both ways, but their voice should be heard and taken into account.

Lord Lucas

I have an amendment in this group. I entirely agree with my noble friend that it is botched and I share his view of the other amendments. Just to take an example, none of them would help Simone, because my amendment would only give her a right to go to a special school, whereas other amendments would require her and her parents to agree in order for her to have a right to stay in a mainstream school.

I am addressing the clear principle that the child's voice should be heard. The Minister has echoed that principle, but there is no current provision to allow that to happen in this particular case. The wishes of the parents or the requirements of the provision of efficient education are considered, but there is no chink there for the wishes of the child to be taken into account. I am not sure what the right wording is, but we must find it. I very much hope that the Minister will agree to bend her back to find a solution and will not leave us to make our own inadequate attempts on Report.

Lord Pearson of Rannoch

I wonder if I could inject a note of caution here, speaking, as I usually do, on behalf of children who perhaps have more severe learning disabilities than others. Of course I accept the ideal that the ascertainable wishes of the child should be respected, where possible. The question is who should ascertain the real wishes of a child who is incapable of making his or her mind known. That would apply to my own daughter, whom I think I know fairly well. She can be made to say almost anything, especially when she has been to McDonald's alone with the social worker. When she comes into the house, she says what the social worker wants her to say, but within five minutes of the social worker's departure, she is saying completely the opposite. I speak from reality, not from theory.

Likewise, Amendments Nos. 10 and 61, tabled by the noble Lord, Lord Ashley, say that regard should be had for the age and maturity of the child. Of course I accept that, but I would add that the mental capacity of the child to make that decision should also be taken into account.

This is an extremely difficult area. I accept the point that the noble Baroness, Lady David, made at Second Reading. I do not pretend that the parents are always right, but, as I shall repeat when I come to Amendment No. 11, I think they are usually right. They are usually the best people to make this sort of judgment. I would therefore be perfectly happy to support the amendments, with the caveat that they must not apply to children who really are incapable of making this sort of decision.

6.00 p.m.

Baroness Blackstone

We understand and sympathise with the aim behind the amendments of giving a formal voice to the child. I have not seen the material that the noble Lord, Lord Rix, has sent, which was also referred to by the noble Lord, Lord Morris, from Simone Aspis, but I shall certainly look at it. However, I can tell my noble friend, Lord Ashley, that I have seen the RNID briefing.

Lord Morris of Manchester

My noble friend referred to the briefing from Simone. The briefing the noble Lord, Lord Rix, was referring to was about several cases known to Simone. I was talking about her own case, and quoting from Simone's personal experience.

Baroness Blackstone

I was aware of that and I am sorry if I did not make myself clear. We are strengthening the voice of the child in the SEN system. However, I will disappoint everyone who has spoken—with the exception of the noble Lord, Lord Pearson of Rannoch; I absolutely agree with everything that he said—including my noble friend Lady David, who regretted that I did not say more about this at Second Reading. We do not believe that the amendments are necessary. Nor do we believe that introducing new statutory requirements will help in resolving some of the very sensitive and practical issues that might arise, given the wide range and complexity of children's special educational needs.

I can assure Members of the Committee, however, that the revised code of practice will make it absolutely clear that the views of the child should be taken into account wherever possible. Sometimes it will not be possible and I am sure everyone will accept that. In taking those views into account, however, it should include in the statutory process for making assessments and statements that LEAs and others will, by law, have to have regard to the guidance. That seems to us the most appropriate way forward, rather than trying to draft an amendment to put on the face of the Bill. I am grateful for the fact that noble Lords have accepted that some of these amendments are "botched". They are; but it points to the great difficulty we should have in finding an appropriate amendment here that would not create more problems than we can resolve through using the code of practice. Indeed, an entire chapter in the draft revised code of practice underlines the importance attached to ensuring that the child's wishes are listened to and taken account of. It provides guidance in involving pupils in the assessment and decision-making processes. It stresses that pupils' participation should start in the early years, so that all children are actively involved at an appropriate level in discussions about their education.

Schools and LEAs must have regard to this guidance. The SEN tribunal will consider whether LEAs have complied with the provisions of the code when they hear appeals from parents. LEAs which disregard the guidance will have to face the consequences of doing so and account for their reasons. In addition, the new SEN tribunal regulations, which are to be laid before Parliament shortly, will entitle the child to attend the hearing of an appeal and to give evidence. Thus, they will be involved in the appeal process too. We have consulted widely on these proposals and have received broad and strong support for them. The current regulations do not expressly entitle a child to attend hearings or to give evidence so we are moving forward substantially here.

If we were to accept Amendment No. 7, it would mean that there was no statutory requirement to take parents' wishes into account when deciding whether a child with a statement should be placed in mainstream education and it is felt that parents should have a say in where their child is educated. Perhaps that was not intended in the amendment that has been moved by my noble friend Lady Sharp. She was very honest in stating that were we to accept such an amendment, we should have quite a new principle in educational legislation. We do not take into account the views and wishes of children when deciding, in disputed cases, about allocation of secondary school places. This would be a dramatic change to existing educational legislation. The amendment would also mean that LEAs would not specifically be obliged to consider the impact that a child's inclusion would have on the learning and safety of others. Again, the impact of that must be considered.

Members of the Committee will know that the key objective of the Government in promoting inclusion is to safeguard the interests of all children and the amendment would jeopardise that. We have already discussed the fact that for inclusion to work, there must be confidence that pupils' needs can be provided for appropriately in the mainstream without a detrimental effect on other children.

I should like to pick up on one final set of issues. My noble friend Lady David raised the matter of human rights. I repeat what I said during the Second Reading debate. This Bill is compatible with Protocol 1, Article 2, of the Human Rights Act, which deals with the right to education. There is no requirement under this article to allow them to determine the provision that should be made for their education.

Furthermore, Article 6 of the European Convention on Human Rights, the relevant article when considering a child's rights to bring a claim and be heard before the tribunal, applies only to claims where people's civil rights and obligations are at issue, which does not include educational rights which fall squarely in the domain of public law.

Turning to the UN Convention on the Rights of the Child, which my noble friend also mentioned, we believe that the changes to the SEN framework, of which the Bill forms a part, will ensure that the framework fully complies with the convention. The convention is relevant in two ways. First, Article 3 provides that in all actions taken concerning children, the best interests of the child shall be a primary consideration. We believe that the provisions made to meet the needs of children with SEN in legislation and associated guidance fulfil this requirement. The entire purpose of the SEN framework is to ensure that children are given the additional help they need.

Secondly, Article 12 provides that children who are capable of forming their own views shall have the right to express those views freely in all matters affecting them, with their views being given due weight in accordance with their age and maturity. It requires children to be given the opportunity to be heard in any judicial or administrative proceedings affecting them, either directly or through a representative or other body. We will ensure that these requirements are met by the changes to the SENT regulations and code of practice that we propose. I hope that with those assurances my noble friend will accept that there is no conflict with human rights provisions.

In the light of everything that I have said and the strong reassurance that I have given on what we intend to do in the revised code in this respect, I hope that noble Lords will feel able to withdraw these amendments.

Lord Rix

Before the Minister sits down, may I make an inquiry? At the outset of her response, the Minister said that she could not agree more with the noble Lord, Lord Pearson of Rannoch, and that his was the only statement which seemed to make sense: that possibly the wishes of a learning disabled child would not be taken into consideration and certainly not those of a severely learning disabled child. Is the Minister saying that that recommendation, which I find totally unacceptable, will go into the code of practice and guidelines? I can assure the noble Lord, Lord Pearson of Rannoch, that I am not speaking from theory.

Baroness Blackstone

No. I should elaborate on what I meant. I am not saying that that should go into the code of practice. What I am saying, however, is that there are very difficult and sensitive issues involved where parents and children may end up in conflict. In any hierarchy of rights here, I believe that the parents have to have precedence, although, of course, it is an obligation for local education authorities to look at the best interests of the child and to take into account the child's views as well as those of the parents. However, we strongly adhere to the view that the parents' views would have to have precedence in any hierarchy of interests that are reflected here.

Lord Ashley of Stoke

Before the Minister sits down, what is the sanction if the code of practice is completely ignored?

Baroness Blackstone

In the end a parent can make a complaint to the Secretary of State and the Secretary of State can then intervene; that is the final sanction here.

Baroness Blatch

Could I ask a question? One of the issues that concerns quite a lot of us is that we are discussing the Bill in a vacuum. We do not have even a draft code of practice. Is there any idea when we are likely to see it? Are we likely to see it before the passage of the Bill through this House? By the time the Bill reaches the Commons will there be a code of practice to be considered alongside some of the measures in the Bill? The Minister will rightly say that many of the issues will be matters for the code of practice. We shall need some reassurance that we shall have some notion about what the code of practice will say.

Baroness Blackstone

I shall not be as helpful as the noble Baroness, Lady Blatch, would like. We are not able to provide a final version of the revised code until the Bill has been passed because the code has to be subject to the framework that the Bill provides. The final form of the SEN code of practice will be brought to Parliament under the affirmative procedure after the Bill has gone through. There will then be an opportunity to debate some of these issues again. Meanwhile, noble Lords have all seen the draft code of practice that went out for consultation.

Baroness Blatch

Could I come back on that point? I do not criticise the Minister, because we are in the hands of those who will be drafting the code of practice. However, if we are not to see it at all, and if it is to be drafted after the passing of this Bill, we shall want to ensure that certain aspects will appear in it. Those issues may have to be put on the face of the Bill, so that we have an assurance ahead of the issuing of the code of practice that they will be dealt with and properly addressed in the code. We will try to be modest in the number of demands that we make ahead of the code of practice, but some issues are so important that some indication in the Bill that they will be included in the code of practice will be necessary.

Baroness Blackstone

We will look at each issue as it arises. Where we can be receptive, we will do our best to be so.

Lord Lucas

How will Section 1(3) work? Suppose a 14 year-old girl is adamant that she wants to stay in mainstream school, and her parent is adamant that she shall go to a special school. What opportunity will that girl have to voice her opinion, and what could anyone do about it anyway—even if she was in the right?

Baroness Blackstone

It is very important that a sensible final decision is made on the basis of all the particular needs of that child. Obviously, I cannot give an answer to the question the noble Lord poses, because I do not know what the particular issues might be in any hypothetical case. It is important that we hear the child's views, although they cannot automatically prevail. Many of us here have been parents and we know that our children do not always get it right. It would be very foolish to come out with an absolute commitment to accept the child's views. The noble Lord believes that the child's view should be taken into account, and those who are making a considered decision should do so on the basis of the best interests of the child.

Lord Lucas

Yes, but under Clause 1(3)the only people who have any voice are the parents. If the parents say, "to a special school you go", and refuse to listen to the child, that child has no one to turn to and the parents' wishes will prevail. Is that not the way that the clause works? There is no provision for hearing a child's views and there is no provision for anyone else to be involved in the decision-making process. The parent says it shall be so, and it shall be so. The noble Baroness has said some admirable things about the position of the child in other aspects of the Bill. Why is this to be the one part where the child has no voice?

Baroness Blackstone

I do not want to repeat what I have already said. The noble Lord, Lord Lucas, has already had the answers. I have made it clear that we are setting out in guidance in the code of practice that the child's views should be taken into account. In our view, it is not necessary to put that on the face of the Bill. Were we to do so, we could find ourselves in unnecessary conflict that could lead to protracted court cases in which children are set against their parents.

Lord Morris of Manchester

Had the code of practice that my noble friend envisages existed at the time, would it have brought any solace to Simone Aspis, whose case I have described in some detail?

Baroness Blackstone

It is very difficult for me to respond to my noble friend one way or the other, because I do not know enough about the particular case. I would have to look at all the documents—I have not seen any of them. It is wrong for Ministers in these circumstances to give a categorical answer, saying yes or no, without being sufficiently familiar with the issues that case raises.

6.15 p.m.

Lord Pearson of Rannoch

I should like to thank the Minister for her remarks in reply to what I had to say. I do hope it will be clear when we come to read Hansard that I was speaking purely on behalf of children with severe learning disabilities and in that respect I hope what I had to say was not too disappointing to the movers of this group of amendments.

Before finishing, I would like to say to the noble Lord, Lord Rix, that I offer him an unqualified apology if he thinks I was accusing him of speaking from the vacuum of theory because I know perfectly well that, like me, he is the father of a child with severe learning disabilities, and I know that he has been through much of the experience that I have and indeed, for a longer period of time. It may not be that we always agree on the solutions, but I would certainly not wish to offend the noble Lord, Lord Rix, in this regard. That concludes my remarks.

6.15 p.m.

Lord Rix

I do not know what the protocol is on this occasion, but the apology of the noble Lord, Lord Pearson of Rannoch, which was very gracious, is accepted. Thank you.

Baroness Sharp of Guildford

I thank the noble Lords who have spoken in support of at least part of my amendment. I did differentiate in putting it forward as to the part that was applicable to the batch of amendments concerned with the wishes of the child.

I reflect the views of many noble Lords in saying that I am disappointed in the Minister's response. We now have a Human Rights Act and it is about time that the United Kingdom endorsed the UN Convention on the Rights of the Child which establishes the principle that the child's voice should be heard.

I am delighted that we now have a full chapter on the matter in the draft code of practice. However, I echo the words of the noble Baroness, Lady Blatch. It is most unfortunate that while we are trying to make sense of this Bill we do not see that draft code of practice. At the end of the day the implementation of the Bill depends entirely upon the code of practice.

Baroness Blackstone

Members of the Committee have already seen the draft code of practice; it has been out for some time. I can supply a copy to the noble Baroness, Lady Sharp, if she would like one.

Baroness Sharp of Guildford

I meant to say we know that changes have been made to the draft code of practice. In particular a very important change was announced just before Second Reading. Therefore, we know that as a result of consultation the code of practice is being changed. We do not quite know what it will contain.

I reiterate the points that the noble Lord, Lord Lucas, made. This is a minor amendment. We do not seek to make the voice of the child paramount; we seek to make the voice of the child heard—where it is ascertainable—among the other considerations that are taken into account.

I take on board the point made by the noble Lord, Lord Pearson of Rannoch. There is a balance to be drawn. But as we know well, unless there is on the face of the Bill some mention of this factor, it can be ignored. When other considerations are at stake, such as those of parents and resources, the voice of the child is lost.

I accept that we have had a response from the Minister. I shall withdraw the amendment, but we shall undoubtedly return to it later in the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 8 to 10 not moved.]

Lord Pearson of Rannoch moved Amendment No. 11:

Page 1, line 17, after ("parent") insert ("which shall normally prevail")

The noble Lord said: In moving the amendment I should apologise for not having been able to take part in your Lordships' Second Reading on 19th December. If I had been able to do so, I would have welcomed the Bill's good intentions but would have joined those of your Lordships who feared that the human and financial resources available to see those intentions succeed may simply not be adequate.

I would also have joined noble Lords who fear that the Bill may move the agenda too far in favour of inclusion to the detriment of special schools and of those children who should be educated in them. I am, of course, encouraged by the words of the Minister, particularly in her winding-up speech at cols. 705 and 706, when she sought to lay this fear to rest.

The Minister and the Committee will be aware that I have an interest to declare and that I am the father of a child with severe learning disabilities, or mental handicap, as many of us still prefer to call it. That child is now 20. She has, therefore, just been through the school system and it is that experience and the experience of many other families with similar children, which lead me to table this amendment today.

I suppose that the main inspiration of this Bill must be that there are many parents of SEN children who want their children to have a mainstream place but who are denied it by their LEAs. That is fair enough and, as I hope I have made clear, I respect that aim.

However, I come at the problem from the other end of the spectrum and speak on behalf of all those parents with SEN children who know that a mainstream place would be wrong for their child and who therefore want their child to go to a special school but who are either denied that entirely or have to go through so many contortions and hoops with their LEA to achieve it that the process leaves them exhausted. I should perhaps emphasise that I speak particularly on behalf of parents whose children have a severe mental handicap, or at least the more severe mental handicaps.

It seems to me that this Bill enshrines in law the wishes of those parents who want a mainstream place but it does little on its face for those who want a special school. I say that because the present wording of Section 316 of the 1996 Education Act contains much the same wording in this respect as the revised wording under the present Bill. The present Act provides that, the child is educated in a school which is not a special school unless that is incompatible with the wishes of his parents."

This Bill says that, the child must be educated in a mainstream school unless that is incompatible with the wishes of his parent. So the same formula is being used, "unless that is incompatible with the wishes of his parent", and it is a formula which has too often not met the needs of parents who want their children to go to a special school. That is so under the present Act and the present wording, which is not changed in this respect. There can be no doubt that the general thrust of this Bill is towards more mainstream schooling and therefore towards less special school schooling. So I submit that without some amendment along the lines of the one I have tabled, without some strengthening of the power of parents, this Bill will indeed have the effect of making it even more difficult for SEN children to go to special schools when that is what their parents want and when it would be in their interests to do so.

I do not pretend that the amendment's wording is perfect and it may even be that it or something like it would be more appropriate in that part of the Bill which deals with the SEN tribunals. There are very many cases which I could put before the Committee where the LEA has refused a special school place in those circumstances. In my own daughter's case, she was fully supported through school in an independent special residential school but the problem arose when she turned 19. Everyone who knew her well agreed that she needed to stay in a sheltered, residential setting but when our application to the Further Education Funding Council was duly made, it was torpedoed behind our back by a single social worker—known as a transition care manager—who had unshakeable ideological views about the benefits of inclusion at any price but who scarcely knew my daughter at all. I should add that my own daughter's handicap is such that she really cannot contribute helpfully to the decision as to where she should go to school.

We were fortunate, not only because we could argue our case with the FEFC perhaps better than many parents, but especially because we could afford to pay for an expensive independent assessment of our daughter's needs. That assessment eventually persuaded the FEFC to fund her place in the college of our choice against the advice of her social worker.

I should, of course, record my gratitude for that. The point is that most parents don't have the financial and other resources to fight that sort of battle.

I know my experience falls outside the strict scope of the Bill, but there are far too many cases where LEAs and social services have pursued an agenda of inclusion against parental wishes and the best interests of the children, particularly those with more severe mental disabilities or handicaps. I do not say that parents are always right, but they are usually right. They are most likely to understand their children best and to know what is in their real interests, so parents should be given the benefit of any doubt.

The Bill acknowledges that position for parents who want a mainstream place for their child. Amendment No. 11, or something like it, would do the same for those parents who want a place in a special school. It would also ensure that the Government's most general and laudable commitment to parental choice was fully reflected. I beg to move.

Lord Astor of Hever

I strongly support the spirit of my noble friend's amendment. I also very much regret that I was not able to take part in the Second Reading debate, as I very much wanted to do. I declare an interest as the father of an eight year-old autistic and dispraxic daughter—I have a lot in common with my noble friend on that point. My wife is also suffering high levels of stress trying to do the best for her child's education.

Many parents feel that the system is loaded against there, and far too often their wishes do not prevail. I have received a number of letters on this point, as I am sure have other noble Lords. Many people working in the LEA sector are well-meaning, knowledgeable and helpful, but I fear that many others are not. Too many case workers and other LEA personnel are inflexible, unavailable and talk down to parents in a most insensitive way. As one parent said to me, the three most important words in their LEA vocabulary are no, no, no. I very much hope that the Minister takes on board the spirit of my noble friend's amendment.

Baroness Blackstone

Yes, I certainly take on board the spirit of what lies behind this amendment, which seeks to clarify the weight that is attached to parental wishes in deciding whether a child receives a mainstream place—although the noble Lord, Lord Pearson, and the noble Lord, Lord Astor of Hever, went a little beyond that.

I want to reassure both noble Lords that the wishes of parents are very important and are always going to be taken into account. As I said when we were discussing the previous amendment, where a parent wants a mainstream place for their child we should do all that we can to provide one. The new code of practice will underline the need to involve parents more throughout the process of the child's education.

The noble Lord, Lord Pearson, was particularly concerned about the claim that has been made by some people that the Bill will make it harder for parents to get a special school place for their child. That is not true. We want an inclusive education service to offer excellence and choice and we recognise that some children need the support that special schools provide. We see no reason why the Bill should result in any diminution of that choice or any reduction in the number of special schools.

I categorically assure noble Lords that the existing right of a parent whose child has a statement to make a positive choice and express a preference for a special school place will be fully maintained. It is important that LEAs listen to what parents want and where a parent wants a special school place and an LEA refuses it, parents can appeal to the SEN tribunal. The new informal arrangements provided under Clause 3, which we have not yet reached, for preventing and solving disputes I believe will help to ensure that a solution that is acceptable to all sides is reached amicably and rather more quickly than sometimes happens.

In the light of what I have said, I hope that the noble Lord, Lord Pearson of Rannoch, will feel able to withdraw the amendment. I shall not go into the issues about further education which are not relevant to this part of the Bill, but I am delighted that in the end he was able to obtain the support for his daughter that he wanted in an FE college.

6.30 p.m.

Lord Lucas

I confess to being rather confused, although I am sure the problem is mine. When we were discussing the last amendment, I was abusing the Bill for not giving the child the right of audience in Clause 1(3). However, the Minister has just said effectively that the child does have a right of audience because the LEA can say, "No, this child will not go to a special school because we have been looking at this child and she does not want to and we think she is right". The matter then goes to the tribunal. If that is right, my problems with the previous amendment were entirely misconceived. I am sure that the Minister thinks that they were anyway, but I would think that. I should be much comforted if the Minister will confirm that I am right.

Baroness Blackstone

I am not quite sure what the noble Lord, Lord Lucas, is saying. In the discussion on the previous amendment I understood that he wanted something put on the face of the Bill. After all, that is what most of the amendments were proposing. I said that we would make it absolutely clear in the code of practice that the child's view will be heard. If that gives him the reassurance that he wanted, I am delighted.

Lord Lucas

Yes. What I did not understand was that the right to express a view to the local authority and the local authority's duty to take it into account would act on Clause 1(3). What the noble Baroness is now making clear is that the local authority can refuse a parental request for a child to go to a special school, against all the parents' wishes, and that in that process there is a mechanism for the child's voice to be heard.

It makes it a more general problem of how the child's voice should be heard rather than one specifically relating to Clause 1(3).

Lord Pearson of Rannoch

I am most grateful to my noble friend Lord Astor and to the Minister for her remarks. I believe I could sum up her remarks by saying that the Bill will not make the position of parents of mentally-handicapped children who wish their child to go to a special school any worse than it is at the moment. The purpose of the amendment was to improve slightly the position of those parents. In what she said about the SEN tribunal working more quickly, she may have gone some way towards that.

I shall study what she has said with care and read it against the words in the Bill. I may need to come back on Report, but in the meantime I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 12 not moved.]

The Deputy Chairman of Committees (Lord Murton of Lindisfarne)

In calling Amendment No. 13, I should point out that if this were to be agreed to, I should not be able to call Amendment No. 14 owing to pre-emption.

[Amendments Nos. 13 to 15 not moved.]

Lord Lucas moved Amendment No. 16:

Page 1, line 19, at end insert— ("(3A) If subsection (3)(a) or (b) above apply to a child, he shall be educated at a school which is not a mainstream school.").

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 27. Both are probing amendments to help me and, I hope, the Committee understand better exactly what happens when the provisions of the Bill are triggered. It is not clear to me what happens if subsections (3)(a) or (3)(b) apply. There is no longer a compulsion to go to a maintained school, but it is not clear that there is a fallback arrangement for the child. I do not believe that the drafting of the amendment is right, but I cannot understand how a kid will be caught if they fall into that patch of the Bill.

Likewise I do not understand what is going on in subsection (4) on page 2, which is why I tabled Amendment No. 27 to take it out. That is merely an opportunity for the Minister to tell me what that provision does so that I may better understand whether I agree that it should do it. I beg to move.

Lord Northbourne

I shall speak to Amendment No. 20, which is in this group. New Section 316A of the 1996 Act appears to preclude the possibility of an education authority purchasing educational services from a school in the private or voluntary sector. Sometimes a child with a disability may best be helped and educated by attending an independent school—for example, if it had special expertise, facilities or experience with a particular disability, or if the child needed an intimate family atmosphere, smaller classes or perhaps boarding facilities.

Of course, the cost of such a school would be higher than the cost of educating that child in a maintained mainstream day school. On the other hand, it is likely to be a lot less than the cost of maintaining that same child in a maintained boarding school. Surely, the Bill should leave open the possibility that there may sometimes be circumstances in which a purchase of education from the private or voluntary sector would be in the best interests of the child and, at the same time, cost less to the LEA. The amendment would leave that option open.

Baroness Blatch

I support the noble Lord, Lord Northbourne. We need the flexibility to look right across the education sector, covering private and state provision, to allow the greatest possible flexibility for meeting the needs of the child. Some choices ultimately cost very dearly. We know that there are some very good special schools in the independent sector. I do not wish to favour one sector over another; I simply want to increase flexibility and open up the whole breadth of education provision to allow the proper needs of young people to be met.

Lord Davies of Oldham

I am grateful to noble Lords for the way in which they have moved their probing amendments, because it gives me the chance to clarify the issue and reassure the Committee about the situation as we see it.

On Amendment No. 16, if a mainstream school that has taken all reasonable steps cannot avoid the conclusion that the presence of a child is incompatible with the efficient education of others, that child should not attend the school. If it is proved that there is no school in the maintained sector in which the child could be educated, provision should be sought elsewhere.

On Amendment No. 20, I assure the noble Lord, Lord Northbourne, that the criteria for funding have not changed with regard to proposals here. It is not our intention to prevent LEAs funding children in the independent sector if that is appropriate. We know of cases where that has occurred in the past and it will undoubtedly occur in the future.

The technical problem with the third amendment is that it would prevent children who could benefit from a mainstream place from gaining one. It is expressed in such a form that once the individual school has not proved to be acceptable in providing adequate education, no other option obtains in the maintained sector. Of course, we want to ensure that there was the possibility of all opportunities being explored within the mainstream sector. However, we are committed to inclusion by choice. Where parents want a mainstream place for their child, it is right that we should do everything possible to provide it. Equally, where more specialist provision is necessary, parent's wishes need to be listened to in that context.

Lord Lucas

I follow on the amendment of the noble Lord, Lord Northbourne. I know a number of independent special schools in which half or more of their pupils come with statements from LEAs. Do I understand from the Minister that they are under no threat whatsoever from the Bill? There are some excellent institutions that come under that category. As the noble Lord, Lord Northbourne, suggested, it appears that that may be discouraged in some way. A further reassurance would be welcome.

Lord Davies of Oldham

I am happy to give that reassurance to the noble Lord, Lord Lucas. The option of the independent and voluntary sector still exists, and there is no change to the existing position in that respect.

Lord Lucas

I shall read what the Minister has said in Hansard with great interest, but I am happy to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Addington moved Amendment No. 17:

Page 1, line 19, at end insert— ("( ) Her Majesty's Chief Inspector of Schools shall report to the Secretary of State on the use of subsection (3)(a) and (b) above. ").

The noble Lord said: The amendment is primarily aimed at getting better information via Ofsted about the use of subsections (3)(a) and (b). We know about tribunals. We know of those who have gone through the system. The amendment is an attempt get some idea of how these powers will be used and how the system is working. As we have heard in this discussion today, there is no great clamour either way. It is to make sure that we get information and know what is going on. Also, if the caveat in subsection (3) (b) is being over-used the amendment would ensure that those in charge who set the standards know about that. It is merely a device for gathering information. I hope that the Minister warms to the idea underlying the amendment. I beg to move.

Lord Baker of Dorking

I support the amendment in principle, but it does not go far enough. If the inspectors are to be asked to examine the operation of the Bill when it is enacted, that will go beyond subsections 3)(a) and (b). That is interesting and important in itself. I dare say that the Government will want that to be considered in the natural measure of supervision.

I hope that the inspectors would produce a much fuller assessment of the capability of LEAs and the independent sector to provide special education. I sought to obtain some comparative performance data out of the department. It was difficult to do so. I wrote to the former chief inspector, Mr Woodhead, in June. I wanted to know how good was the school for blind children with which I am involved compared with others in the private and state sectors. One gets so involved with one's own school and thinks that it is marvellous. I wanted to see how good it really was.

In his reply the chief inspector wrote: The Inspectorate has not undertaken any specific work on the provision of education for blind and partially sighted children but all the special schools catering for such children in the state sector have been inspected and reports have been published. Most schools for Visually Impaired children have had very positive inspection reports. We have not undertaken any specific comparisons between maintained and non-maintained VI schools. Similarly, we have not investigated the specific impact of visually-impaired units within mainstream provision. Where such units have been commented upon within mainstream school reports, however, the observations have been generally very positive. I am sorry that I cannot provide any more detailed information. For this information on visually impaired you could also substitute the deaf or the physically disabled, or the autistic for that matter. We all need to know more about it. I should like to know how effective special education is in particular areas. Are the special schools doing a particularly good job, or are they narrowing the education so precisely that they are missing out on things? When it comes to mainstream schools, how effective are they at getting their children to take GCSE exams and getting them up the educational ladder? Are they actually fulfilling specific objectives?

This information is not readily available, because of the independent inspections of schools, and what is wanted is comparative information. If I were the parent of a child with any form of disability, I should want to see comparative data. I should want to see not only the facilities that are available either in independent or state maintained special schools, or in the mainstream schools. I should like to see output, effort, and how this compares elsewhere. I should want to inform myself, but I should say that this information is not readily available. It would do great service to the whole area of special educational needs if it were available. I do not believe that anyone other than inspectors could do it. Inspectors are particularly well suited to the task.

I hope that the Minister will take this away and reflect upon it, and consider how it can be done—not so much in the context of this Bill, but I should like to see a more discriminatory, selective system of approach. So much about special educational needs comes down to anecdote. There are particular cases—we have heard some today—which are very interesting, but anecdotes are not very reliable criteria on which to base very important decisions about the education of special educational needs children.

Lord Lucas

I support that entirely. There is very little information when you are faced with choosing a special school as to what the characteristics are, let alone whether one is good or bad. Some progress in that direction would be a great help to parents who find themselves in that position.

Baroness Blackstone

I think I can say something that should be helpful to Members of the Committee who have spoken on this amendment, which would require Her Majesty's Chief Inspector of Schools to report on the use of the caveats under Section 316(3) and to monitor the effect of a legislative framework on practice on the ground.

We believe that the new inclusion framework should be monitored. Let me first reassure the Committee that we can secure an effective monitoring regime without the need to amend the Bill. There are already a number of robust measures in place to monitor the development of inclusions by schools and LEAs but we want to know much more about how this new provision will work on the ground. I entirely accept some of the reservations that the noble Lord, Lord Baker, has on the extent of our existing knowledge. We shall want to know what positive effects it will have for some children who want a place in a mainstream school. We also need to know if and how the provision is being used in a negative way. However, we need to remember that the original Section 316 was drafted as a positive pro-inclusion measure but, over time, it has begun to be seen as a negative force, as a mechanism to turn away children who have special educational needs from mainstream schools.

We shall certainly want to see whether this new statutory framework will put right any of the abuses that existed under the previous regime. I should like to give the Committee the absolute assurance that the Government will monitor very closely the new framework.

I turn now to Ofsted. The regular Ofsted inspection of schools and their inspection of LEAs, along with the work of the Audit Commission, ensures a fairly high level of accountability on what schools and LEAs are doing. The Secretary of State can use his powers in Section 2 of the Schools Inspections Act 1996 and Section 38 of the Education Act 1997 to require a report from Her Majesty's Chief Inspector of Schools on any education function of schools or LEAs.

I give a commitment that the Government will be asking Her Majesty's Chief Inspector of Schools to look specifically at the impact of this provision once it is enacted and is being used as the legislative mechanism to determine whether a child with a statement of special educational needs is educated in a mainstream school or in a special school. That goes to the heart of what the noble Lord who supported this amendment wants to see.

I very much hope that the commitment that I have given will mean that the noble Lord, Lord Addington, will feel able to withdraw his amendment. I do not know whether it goes as far as the noble Lord, Lord Baker, would like. It provides a new opportunity to obtain far more information of a general kind, rather than just specific information about the inspection reports of individual schools, which should be helpful to us all.

Lord Addington

I thank the noble Lord, Lord Baker, for spotting the weakness of this probe and for sharpening it up a little. We seek to get rid of the problem that the noble Lord, Lord Baker, identified. He put the matter succinctly. Every time we discuss this matter we talk about various problems. We must have better information if we are to discuss when inclusion is appropriate.

I thank the noble Baroness for her full response. I will, of course, read it through and check to see if there is anything else that we would like to extract at a later date. I thank her for at least opening up this debate with such a positive response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees

If Amendment No. 18 were to be agreed to, I should not be able to call Amendments Nos. 19 or 20 owing to pre-emption.

Baroness Blatch moved Amendment No. 18: Page 2, leave out lines 9 and 10.

The noble Baroness said: My understanding is that Amendment No. 20 has already been spoken to in a previous group of amendments. In some ways the Government's views on using the private sector, where appropriate, have been mentioned in fairly positive terms by the Minister.

The Bill continues to allow parents to choose to send a child with special educational needs to an independent school—I believe that that is right and proper—but only if the parent or someone other than the LEA pays for that. I do not agree with that. The Bill effectively bans an LEA from purchasing a place at an independent school for a child with special educational needs or from partially assisting the parents with the cost of that.

If it is the Minister's intention to improve the provision that we make for children with special needs, the Government must continue to acknowledge that an independent school may be best placed to assist a child with special educational needs. If that is the case, the relevant LEA, under its legal obligation to provide education, should pay for that in full or in part. The Bill, as I read it, prohibits LEAs from doing that. However, the answer that the Minister gave to the noble Lord, Lord Northbourne, seemed to imply that, where it was appropriate and where provision could not be made within the maintained sector, LEAs would be free to purchase such education in whole or in part. Under the School Standards and Framework Act LEAs were not permitted to purchase education in the independent sector for children without special needs.

It would be helpful to have it unequivocally clarified that LEAs would be able to purchase the provision I have mentioned. It would be even more helpful to have the wording of the Bill modified to convey that. If my amendment is not right in every dot and comma, perhaps I could be advised as to how that could be done. I beg to move.

Lord Lucas

I have tabled the other amendments in this group. I share the lack of understanding about what subsection (1) does. The only function that I can see for it, following what the Minister has said, is to allow me to pay for my child to be educated in a special school if I so choose, but Section 316 does not stop me doing that anyway. What does the provision allow that would otherwise be forbidden by Section 316? What set of circumstances is it designed to deal with? My Amendment No. 19, whether it is relevant or not, depends on what subsection (1) is meant to be about.

It ought to be permitted for LEAs and parents to share the costs of going to an independent special school if both parties think that it is the best option but the LEA thinks that it can provide something cheaper. That sort of cost-sharing has long been possible in the provision of care for the elderly; I do not see why it should not be possible in care for the young.

My other amendments in this group are nothing to do with that issue. Amendment No. 29 relates to subsections (5) and (6) on page 3, which seem to allow the phrase "efficient use of resources", which has been excised from Section 316, to come back in another guise. If a local authority is allowed to argue that the steps that it would be required to take to provide for a child with SEN are unreasonable because of cost, we go straight back to the issue of the "efficient use of resources" as it exists in the Bill at the moment. The wording of subsections (5) and (6) opens the back door to local authorities to bring cost back into the equation and to say that they cannot provide for, say, a particular blind child in a particular school because it would be too expensive and the steps required would be unreasonable.

There are two aspects to Amendment No. 220. It picks up on another reference to "efficient use of resources", which is sitting around in Schedule 27 to the 1996 Act. Since we are removing those words from Section 316, we ought to question whether they should still be hanging around in Schedule 27.

The second half of that amendment is different, focusing on the duty imposed or the rights that are featured in Section 411(5) of the 1996 Act in relation to parental choice in mainstream schools. The amendment would reproduce that for choices of school under statements. The local authority can currently refuse to send a child to any school outside its own boundaries, because the old arrangements whereby LEA boundaries had some meaning for school choice are preserved for special education, whereas they have not been preserved for mainstream education. The second half of Amendment No. 220 is an attempt to bring special education into line with the provisions for mainstream education when it comes to the physical boundaries on parental choice.

Lord Northbourne

In the context of Amendments Nos. 18 and 19, I did not respond to the remarks of the Minister about Amendment No. 20, because I believed that it did not fit in with the etiquette. However, I am grateful to her. I had written against it "probe further". The questions asked by others here, including the noble Baroness, Lady Blatch, may give the Minister an opportunity to answer my points and enable me to cross out "probe further".

7 p.m.

Baroness Blackstone

Perhaps I may begin by reassuring the noble Baroness, Lady Blatch. The duty of an LEA to pay for independent schooling which is set out in Section 348 is specifically preserved in Section 316A(3)(a). LEAs will continue to be able to send children to independent schools if it is required for the child's special educational needs, and the LEA can of course pay for such provision. I hope that is helpful to her.

Perhaps I may also immediately answer the question that was put by the noble Lord, Lord Lucas. If Section I did not exist, parents could not send a SEN child to an independent school at all because it would be in breach of the Human Rights Act. Do not ask me to explain the legal niceties of how it works because I do not know, but it preserves the rights of parents to use the independent sector if they pay. I hope that is helpful. It has a specific purpose here.

Perhaps I should say very quickly why we cannot accept Amendments Nos. 18 and 19. I do not believe that the noble Baroness, Lady Blatch, will think her amendment is necessary in the light of what I have said. The amendments would seek to acquire funding in the case of Amendment No. 18, and partial funding in the case of Amendment No. 19 for places in independent and non-maintained schools, where that is what the parent wants. That would not be an appropriate step to take.

If parents decide to educate their children in an independent or non-maintained special school, that is a matter for them. If a school is named on a child's statement, or an LEA is satisfied that a child with special educational needs should attend a particular non-maintained school, then under Section 348 of the 1996 Act, the LEA is required to meet the fees.

LEAs are also given the power to meet the fees of children attending specialised institutions outside England and Wales. In other cases, the financial burdens of that child's private education should not rest either in whole or in part with the taxpayer. LEAs should be required to fund places in non-maintained schools only where it is appropriate for a child's statement to name such a school, or the child's interests require that special educational provision be made for him at a non-maintained school, and the particular school is appropriate. Members of the Committee will agree that that preserves the efficient use of resources, and that has been the system up until now.

In the light of that, I hope that the noble Baroness, Lady Blatch, and the noble Lord, Lord Lucas, will not press their amendments.

I turn to Amendment No. 29. It would be inappropriate to seek to set out on the face of the Bill all the reasonable steps maintained schools and LEAs could take to prevent a child's inclusion being incompatible with the efficient education of other children. However, when it comes to considering what is reasonable, we believe that cost should be one of the factors to be taken into account. The concept of reasonableness is well understood. It will often be reasonable to spend some money, but it will not always be reasonable to spend large sums of money. It will depend on all the circumstances, and they should all be taken into account. That is the point of the reasonableness test and that is always how it has been.

This is a complex clause, but it is important to understand the interaction between taking reasonable steps and the efficient education of others. Maintained schools and LEAs will be able to rely on the exception that a child's inclusion would be incompatible with the efficient education of other children only where there are no reasonable steps which they could take to prevent that. As I said a moment ago, when it comes to considering what is reasonable—that is, whether an LEA or school can take reasonable steps to prevent a child's inclusion being incompatible with the efficient education of others—cost will be a factor to be taken into account. However, cost will not be a factor when deciding whether a child's inclusion would be incompatible with the efficient education of other children. I hope that the guidance will make that absolutely clear.

We believe that detailed questions of what is reasonable are better suited to guidance and the clause provides for that. Maintained schools and LEAs will have to have regard to the guidance and I can assure noble Lords that the Government want to work with all the interested parties in drawing up that guidance. I hope that, having heard these reassurances, the noble Lord, Lord Lucas, is able to withdraw that amendment.

The intention behind Amendment No. 220 is to make it easier for parents to have an independent school named in their child's assessment. The existing arrangements give parents the opportunity to make representations for an independent school to be named in their child's statement. Where an LEA refuses to do so, parents can appeal to the tribunal against the school actually named, and suggest alternatives to the tribunal—including, if they wish, alternatives in the independent sector.

However, there will be a role here for the new informal arrangements which we hope will both prevent and resolve disputes. Where parents and the authority disagree over issues like this the new arrangements, which parents enter into voluntarily, and which do not in any way affect their right of appeal, will ensure that an acceptable solution is reached rather more quickly than has perhaps been the case.

Where is it appropriate for a child's statement to name an independent school suggested by parents, then the LEA really should do so. However, it is also right that LEAs should seek to use their resources efficiently—and nobody can disagree with that. The omission of efficient use of resources from the schedule is, for those reasons, quite inappropriate.

When making a determination in relation to a parental preference made in accordance with Schedule 27, or the representations made by parents for an independent school, we have to consider the cost. If we did not, we should be jeopardising the interests of all children. Where parents feel that an LEA has used that test inappropriately, they can seek redress from the tribunal, or use the new informal arrangements to resolve the dispute.

I conclude by saying that we value the important role of the independent sector. I should like to make that absolutely clear. The Bill specifically provides that parents should be free to send their children to non-maintained schools and it retains the duty on LEAs to pay for provision if they decide that a non-maintained school is appropriate. Our commitment to the sector is underlined by the quite significant additional funding that we have been able to provide to non-maintained special schools, which has been very widely welcomed.

In the light of these explanations, I very much hope that the noble Lord, Lord Lucas, will be able to withdraw these amendments.

Lord Lucas

I am grateful for those comments. On Amendment No. 19 and subsection (1), I should be very grateful if the noble Baroness could write to me and tell me with which problem that subsection is meant to deal, just for my enlightenment. I should also be very grateful if the noble Baroness could save me having to table an amendment on Report, which is properly worded, and write to me about the second half of Amendment No. 220. As it is worded, I see that it deals with independent schools, but it is actually meant to be a reproduction of Clause 411(5) of the 1996 Act, which deals with maintained schools. I have just drafted the amendment wrongly and, if she could explain to me why that is not appropriate, then I will not table an amendment on Report to do what I should have done at this stage.

I am very grateful for what the noble Baroness said about Amendment No. 29 and I am much better informed as a result.

Lord Baker of Dorking

Before we part company with this group of amendments, the Minister kindly set out very explicitly the arrangements where there is a dispute between the LEA and parents —particularly where a school has been identified and failed. Disputes between parents and the LEA can occur much earlier during the process of when the statement is being determined and where the appeal is being made to the tribunal. It occurs to me—and this is fishing for later in the Bill—that it may have been drawn to the Minister's attention that a growing number of LEAs are now appointing barristers—counsel—to put their case at an SEN tribunal. Not all of them are doing so, but quite a few are. That definitely puts them at an advantage vis à vis the parents, unless the parents can also fund the very expensive legal advice involved. If this Bill is passed, will there be a perfectly level playing field? I do not think there will be. It may well be that in certain circumstances legal aid should be made available to parents, particularly when it is known that the local education authority is going to employ counsel, because that weights the argument strongly in favour of the experienced legal advice.

Baroness Blackstone

I am grateful to the noble Lord, Lord Lucas, for what he said about my explanation, especially on Amendment No. 29. I am very happy to write to him on the other two issues that he has raised.

In response to what the noble Lord, Lord Baker, has just said, one reason why we want arrangements to resolve disputes before they reach a tribunal is to avoid those costs. I will certainly take back what he has said about the issue of local education authorities employing expensive barristers. Perhaps when we get to the relevant part of the Bill we can discuss the issue further.

Baroness Blatch

I shall withdraw Amendment No. 18, but I might also find it helpful to have a copy of the letter that is going to my noble friend Lord Lucas, because I am baffled by the provisions. I understand what the Minister has said—in a sense it repeats a number of responses to amendments that we have had already today. She is giving very accommodating answers, but they conflict with what is in the Bill.

The Bill says that Section 316 does not prevent a child from being educated at an independent school that is not a mainstream school or a school approved under Section 342 if the cost is met otherwise than by a local education authority.

I understood the Minister to say that the LEAs are free. She has mentioned other parts of the statute that refer to the freedom for LEAs to pay in whole or in part for a place at an independent school. However, as I understand the Minister's answer, Section 316 does not prevent a child from being educated in an independent school or a school approved under Section 342, whoever pays—the LEA, an individual, an organisation, a voluntary body or the parent.

I therefore find the reference to the cost being met otherwise than by an LEA confusing. In responding to the point made by my noble friend Lord Lucas and in writing the letter to explain this section, I hope that the Minister will reflect that these words are otiose here. A child is not prevented from being educated in an independent school, because the cost can be met by anybody. No one is prohibited from meeting the cost of the fees, including the LEA, as I understand the Minister's reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 19 and 20 not moved.]

7.15 p.m.

Lord Pearson of Rannoch moved Amendment No. 21:

Page 2, line 10, at end insert— ("( ) Section 316 does not prevent a child from being educated in a special independent school where the cost is met by a local education authority.").

The noble Lord said: I shall not speak to Amendment No. 41, because it is on a different subject. Perhaps it should wait its turn on the Marshalled List.

I apologise for the typographical error in the wording of Amendment No. 21, which should, of course, refer to an "independent special school" and not to a "special independent school". The Minister may already have set my fears at rest over the amendment, so I can be brief.

The amendment would merely make sure that independent special schools were not caught by the new provisions of Section 316A(1)(a), to which my noble friend, Lady Blatch, has just referred, and which seem to prevent funding by local education authorities of places in non-mainstream independent schools.

My worries may be unfounded, but I fear that an independent special school could be held to be neither a special school nor an independent school as those expressions appear technically on the face of the Bill, so I wanted to be quite clear on that. The previous section seems to make clear that special schools can continue to be funded by LEAs but the Bill is not clear to me on the position of independent special schools.

As usual, I should declare an interest because my daughter has received a wonderful education in an independent special school, one of the Steiner Camp Hill community schools and has moved on to a residential college with the same philosophy. There are, of course, other kinds of independent special schools, I believe more than 50 altogether, so I assume it is not the intention of the Bill to cut off their main line of support, which comes from the LEAs. I beg to move.

Lord Davies of Oldham

I shall try to be as brief as the noble Lord, if only because, if I set out to repeat what my noble friend the Minister has just said, there will be a danger of my either being totally repetitive, or deviating from it or, even worse, contradicting it and I should be in a parlous state.

I wish to re-emphasise that the points that were made with regard to the last amendment certainly obtain in relation to independent special schools. There is no separate legal category for them; they are all independent schools and, therefore, the argument presented by my noble friend a moment ago on the previous amendment obtains in respect of the special schools.

Lord Pearson of Rannoch

I am most grateful to the Minister and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 22 to 27 not moved.]

Lord Ashley of Stoke moved Amendment No. 28:

Page 3, line 8, after ("steps") insert ("in relation to the arrangements it makes for education or associated services provided for, or offered to, pupils at the school")

The noble Lord said: Amendment No. 28 concerns the question of reasonable steps being taken by the local education authority or the school before excluding a child. It is yet another attempt to make sure that children with special educational needs cannot be unreasonably blocked by the LEA insisting on exclusion from mainstream schools. Time and time again this afternoon, we have heard that there are many genuine fears about children being unreasonably excluded.

The RNID has sent some striking examples—one being where it knows of teachers who refuse to wear neck loop microphones with a deaf child in the class. The significance of that is that that child's education stops dead because the teacher refuses unreasonably to wear a neck loop microphone. I find that really shocking and absolutely indefensible to be damaging a child in that way simply because of that excuse.

The second example that I know of is the exclusion of deaf children because the presence of communication support would distract other pupils. Perhaps we have seen this afternoon how nonsensical this is when you have communication support which goes almost totally unnoticed and to argue that the child should be excluded because of communication support is not only wrong, it is bizarre. On that basis, no handicapped child with any disability could be assisted in school, because any assistance could be construed as distracting to other children.

The clause permits exclusion only if the school is able to show that no reasonable steps could have been taken to include the child. The problem is that the clause has no indication of what is reasonable and the RNID says that it has many examples of necessary minor alterations to schools being used to justify exclusion. If they are going to change a window, a little brickwork, and use that as an excuse for excluding children, anything goes and we simply have to stop this.

I conclude by saying that the amendment will ensure a broad interpretation of "reasonable steps" and will clarify the point that these may go beyond a particular class and the phrasing in Clause 10 where it is intended to be comprehensive about what goes on in schools. I beg to move.

Lord Addington

Amendment No. 30 is in my name. I am fully aware that the inclusion of a list may not be a favourite form of amendment. This is not a totally inclusive list; it is merely items that shall be taken into account when talking about reasonableness. The definition of what is and what is not reasonable is effectively what we are talking about here.

The examples given in my amendment are ones for which we have briefing and which we have already discussed today in all cases. For example, the case of Nicky Crane is probably the most absurd example I have heard. He was somebody who was not allowed to leave a classroom a few minutes early. Anybody thinking about that situation for two or three seconds would be absolutely appalled by it.

The danger of a list amendment is that the list never stops. I suggest that the amendment of the noble Lord, Lord Ashley of Stoke, would be a better way of approaching the matter. However, we are trying to get some commitment as to what is reasonable in this context. Effectively, no one type of activity should be regarded as being unreasonable.

To go back to the great demon of anecdotal experience, throughout my educational career being dyslexic and rather less informed than today, I had certain teachers who went almost apoplectic at the idea of a tape recorder being used in class. That would not happen now because we have moved on. Also they found even more worrying the idea that you would not be take verbatim notes. Indeed, this stopped at university when I told the tutor in question that I would simply copy the notes out of the text book that he copied them out of—or rather read it.

With a little flexibility, one can get round most things. But we are trying to make sure there is no one activity that of itself is regarded as unreasonable. If the Minister can assure me that movement, technical assistance, or even some way of communicating with a person in class would itself not be reasonable, I should be a much happier person.

Baroness Darcy de Knayth

Very briefly, I support the spirit of both the amendments, and I hope the Minister will be able to come up with something that she can put on the face of the Bill that will remedy this.

Lord Rix

In the list of problems, we have not discussed making arrangements to accommodate the medical needs of pupils. I speak for Mencap of which I am president. We have heard some pretty horrendous stories over the past years of extraordinary rigidities in schools which insist on children leaving their health needs behind when they get to the school doors. I not only support the amendment, but support that clause in particular.

Baroness Blackstone

The aim of the amendments is to clarify what steps it could be reasonable for maintained schools and LEAs to take in order to prevent inclusion being incompatible with the efficient education of others. Members of the Committee will be pleased to know that maintained schools must already comply with the national curriculum inclusion statement. By virtue of Section 317 of the 1996 Act, they must also use their best endeavours to ensure that the special educational provision called for by pupils' special educational needs is made. For example, they should allow a learning support assistant into class if that is specified in a child's statement. I hope that is the kind of reassurance which the noble Lord, Lord Addington, wanted.

I am afraid I may be a disappointment to the Committee in saying that it would not be appropriate to seek to set out on the face of the Bill all the reasonable steps that maintained schools and LEAs could take to prevent a child's inclusion being incompatible with the efficient education of other children. This could unnecessarily restrict the inclusion of children in the future. After all, inclusion is a process, not a fixed state. What is unreasonable now may not be in years to come when I hope that schools will be far more inclusive and accessible. If we set out reasonable steps on the face of the Bill, changes to reflect the development of inclusion would require primary legislation, which we want to avoid.

We believe that these considerations are better suited to guidance and the clause provides for this. Maintained schools and LEAs will have to have regard to the guidance. I want to assure noble Lords that the Government want to work with all interested parties in drawing up the guidance and that we shall want to consult on it.

Of course, it will be important to consider each case on its individual merits. But I hope that noble Lords were reassured by the examples I set out earlier of the sorts of pupils where we believe no reasonable steps could be taken to ensure that their inclusion was not incompatible with the efficient education of others. I said then and I will repeat again that many more pupils with SEN can and should benefit from a mainstream placement.

Guidance will underline that it will only be possible to demonstrate that a child's inclusion is incompatible with the efficient education of other children in a small minority of cases. Guidance will also address what factors might be taken into account when assessing what reasonable steps could be taken to overcome the incompatibility.

Having heard these reassurances, I hope that my noble friend, and indeed the noble Lord, Lord Addington, will feel able to withdraw their amendments.

Lord Ashley of Stoke

I have listened to my noble friend. She leans over backwards to help. However, I must say that guidance will be completely ignored by the kind of local education authorities and schools I have in mind because it is by no means strong enough. I recognise that she is doing what she can to help.

I am anxious that the Minister should understand that making these criticisms of specific aspects of the Bill in no way denigrates my warm support for it as a whole. It is a great Bill, but I am making these detailed points because the Government are slightly awry on them. I will of course withdraw this amendment and possibly return to it at a later date.

Amendment, by leave, withdrawn.

[Amendments No. 29 and 30 not moved.]

Baroness Farrington of Ribbleton moved Amendment No. 31:

Page 3, line 17, at end insert— ("( ) "Prescribed", in relation to Wales, means prescribed in regulations made by the National Assembly for Wales.").

The noble Baroness said: In moving Amendment No. 31 I speak to the other government amendments in this group. This group of amendments is essentially technical and clarifies the powers and role of the National Assembly for Wales to reflect the devolution settlement. It is only right that, in areas where functions have been devolved to the National Assembly, it should be able to exercise its powers. Amendments Nos. 31, 123 and 124, taken together, give the National Assembly the power to make regulations in respect of duties in areas which have been devolved to Wales.

Amendment No. 64 will require the agreement of the Assembly when the DfEE makes regulations specifying the period within which a local education authority must comply with an order of the SEN tribunal. This reflects the devolution settlement under which matters relating to the tribunal are dealt with by the Secretary of State, but with the National Assembly's agreement.

Amendments Nos. 147 to 149, and 151 to 153, taken together, provide that directions relating to orders of the tribunal dealing with disability duties, which are reserved, should only be given by the Secretary of State and not by the National Assembly. Amendment No. 199 gives the National Assembly the power to commence specific sections of the Bill, in so far as they relate to Wales. Amendments Nos. 195, 200 and 201 make consequential changes which follow from this amendment. I beg to move.

On Question, amendment agreed to.

Clause 1, as amended, agreed to.

7.30 p.m.

Lord Davies of Oldham

I think this may be a convenient moment for the Committee to adjourn until Monday, 29th January at 3.30 p.m.

The Deputy Chairman of Committees

The Committee stands adjourned until Monday next.

The Committee adjourned at half past seven o'clock.