HL Deb 06 July 1981 vol 422 cc525-70

House again in Committee on Clause 2.

[Amendment No. 15 not moved.]

Lord Banks moved Amendment No. 16:

Page 2, line 36, at end insert— ("( ) The Secretary of State shall have a duty, after consultation with organisations of handicapped people and the parents of handicapped children, to issue guidance to local education authorities specifying (a) the matters to be covered in development plans for meeting special education needs in ordinary schools submitted under section 2(4) above, and indicating the ways in which such needs can best be met in ordinary schools, paying due regard to the variety of distinctive types of need which may exist; and (b) the factors which are to be taken into account in determining what constitutes efficient education and the efficient use of resources in subsections (3)(b) and 3(c) above.").

The noble Lord said: This amendment provides that in planning the development of integration in ordinary schools the local education authorities shall have advice from the Secretary of State as to how they should proceed. In the report Integrating the Disabled the following was said about advice from the centre: A national commitment to integration would of course mean that the activities of the various authorities concerned would have to be co-ordinated and the necessary information, guidance and encouragement provided by central Government". And the Warnock Committee said this: We recommend that the Secretary of State for Education and Science should issue comprehensive guidance to local education authorities on the framing of their future arrangements for special educational provision". This amendment provides for the guidance which these two reports felt should be given. The guidance would specify matters to be covered in development plans, indicate ways in which needs can best be met in ordinary schools, specify factors to be taken into account when determining what constitutes efficient education and what constitutes the efficient use of resources. I would hasten to say that the use of the words "development plan" does not necessarily mean a written plan, which we were discussing earlier. I beg to move.

Baroness Young

I think that we could all agree—certainly the Government do—about the need to issue very comprehensive guidance to local education authorities in order, as it were, to put flesh on the legislative skeleton which we have before us. Circulars of guidance will be issued after the enactment of this Bill and consideration has already begun on the necessary scope and content of the guidance which will be required. I think that goes quite a long way towards meeting the point made in this amendment.

I will not go over again the Government's objections to development plans because the Committee has already considered that matter earlier, but I think it is important to remember that what we are dealing with in this part of the Bill is the placing of 150,000 to 200,000 children in up to 25,000 schools. The whole concept of the Bill is towards looking at the child as an individual, assessing his needs and making appropriate provision for them. We believe that it would be out of keeping with that aim, even if it were possible (which I doubt) to lay down detailed rules specifying the arrangements and facilities that should be provided before a child with special needs was admitted to one of those schools. Nor is it necessary to prescribe the factors to be taken into account in determining what constitutes efficient education and the efficient use of the resources referred to in this clause. It was not necessary to do so in the provisions about parental choice in the 1980 Education Act, and where the same words are used it is not necessary here.

In fact, in the last resort, decisions about what is best for the child with special needs, for those with whom he will be educated, and for the system, can only be taken locally in the light of detailed knowledge about the child and about local conditions. Although we can impose general requirements on LEAs to have regard to this, or to take account of that, particular feature, we cannot prescribe every detail from the centre. It is wrong that we should do so since we are dealing with local authorities who are elected and accountable bodies to whom the Education Acts have entrusted the provision of the service.

I hope with that explanation, both on the educational point and, once again, on the constitutional point and the fact, as I emphasised at the beginning of my remarks, of the importance that we, as a Government, attach to comprehensive guidance to LEAs—the point that the noble Lord, Lord Banks, made very fairly at the beginning of his remarks—the noble Lord will feel able to withdraw his amendment.

Lord Banks

I am grateful to the noble Baroness for her reply. What she said at the beginning of her remarks certainly went some way towards meeting the point behind this amendment. I should like to make it quite clear that I agree with her that we should not try to prescribe every detail from the centre, and that certainly was not the intention behind the amendment. I should like to consider carefully the arguments which she has advanced against certain aspects of the amendment; in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Earl Cathcart)

Subsequent amendments have been marshalled in- correctly and I shall now take Amendment No. 19, which should read "page 2, line 36" and not as printed" page 3, line 12".

[Amendment No. 19 not moved.]

7.57 p.m.

Baroness David moved Amendment No. 17: Page 2, line 37, leave out ("the Governors, in the case of a county or voluntary school, and of").

The noble Baroness said: This is an amendment which in fact has come from the Association of Metropolitan Authorities and I am moving the amendment really in order to ask a question. They ask why the governors should be involved here because in fact they have no finances and it is the responsibility of the local education authority to exercise its functions in this way. The Bill as drafted places a responsibility on the governors of schools which they simply do not have the resources to fulfil. So as the responsibility rests on the local education authority, why are the governors put in the subsection? I beg to move.

Baroness Young

I hope that I can answer the question posed by the noble Baroness. As she will know, the respective duties of local education authorities and governors in relation to county schools is a complicated issue. It becomes even more complicated so far as voluntary schools are concerned. When we were looking at the Bill it seemed to us important to ensure that those nearest to the day-to-day running of the school should be aware of their responsibilities for meeting the special educational needs of registered pupils at that school. We therefore concluded that while overall responsibility for meeting special educational needs generally clearly rests with the LEA—a point which I think the Association of Metropolitan Authorities is making, and they do so under the duty imposed on them by Section 8 of the 1944 Act—nevertheless some specific duties could, and should, be placed on governors of maintained schools. Governing bodies with their parent-teacher representatives have, we believe, a real role in respect of their schools and it is important that this embraces pupils at the schools who have special educational needs. In imposing the duties in subsection (5) in the way we did we had it very much in mind that this was yet another way of encouraging a better awareness of the needs of a wider group of children identified by this legislation among all concerned with their education.

Perhaps I may add a further point on that. It seems to me that this strengthens the role of governing bodies in schools—something to which the Government attach importance, and I believe most members of the Committee think in principle that it is right. So we included this in order that governing bodies will be looking at the special educational needs of all pupils registered in the schools of which they are governors. That is why this is included.

Baroness David

I thank the Minister for that reply. The point I was wondering about was how the governors were going to carry out that duty if they did not have the resources. What I shall do is to consult with the people who asked me to table this amendment and find out whether they wish any further action to be taken, and I shall also think about whether further action should be taken. At the moment I beg leave to withdraw this amendment.

Baroness Young

Before the noble Baroness withdraws it, may I add one other point. One of the things which I believe will be paramount here is the attitude of the teachers, and of course the attitude of the pupils themselves in the schools where there is integration. That is a matter to which governors could well turn their attention and could have some really helpful and positive things to say.

Amendment, by leave, withdrawn.

8 p.m.

Baroness Jeger moved Amendment No. 18: Page 2, line 41, leave out ("to use their best endeavours").

The noble Baroness said: I beg to move Amendment No. 18. In this clause dealing with the provision of special education it is stated quite clearly that special educational provision is to be made for pupils who have special educational need. On an earlier amendment when 1 sought to strengthen that clause I was told from more than one source that there was no need because the obligation was absolute. But then when we get down to subsection (5)(a) we are told that the duty is "to use their best endeavours" to provide for these children. That seems to me to be something of a contradiction. The phrase "use their best endeavours", is very vague. Not long ago when the noble Lord, Lord Banks, moved an amendment which included the word "reasonable", the noble Baroness said that one of the difficulties was that "reasonable" was a difficult word to quantify. I must say that I think "best endeavours" is an even more difficult phrase to quantify. I do not want to be cynical about this, because I know that many local authorities are really sincerely using their best endeavours. But I cannot understand why this phrase has been put into a clause of the Bill which is supposed to lay the duty on the local authority.

I have been a member of a local authority for many years, and so have many of my noble friends and noble Lords opposite. We all know that there are certain mandatory statutory duties that are laid upon the council and they have to be carried out. Then there is a wide range of activities on which the council can make up its own mind and use its best endeavours. I really hoped that as far as the education of these children was concerned this would have been a mandatory duty, and it seemed at the beginning of the clause as if it were. Then at the end of the clause there is slipped in this nasty little phrase about using their best endeavours.

Who is to judge the best endeavour? One might have an education authority where the councillors were very divided, and by some tiny minority some project is lost or another project passed. All sorts of compromises have often to be made in local government. I cannot think who is to judge whether the authority has used its best endeavours. If a council excused itself on these grounds by saying, "We did try", can the Minister say, "But you did not try hard enough; you used only your half best endeavours; you could do a better endeavour"? This kind of phraseology seems to me confusing and unhelpful. I move this amendment because I think the use of those words weakens the Bill, and we are all very concerned that the Bill should not be weakened. I beg to move.

Baroness Young

I can understand noble Lords' reaction to the use of the words" to use their best endeavours". I think the noble Baroness, Lady Jeger, was very forceful on the subject. I should like to ask her to consider the practicalities of the situation we are talking about in Clause 2. We are talking about securing education for children with special educational needs in ordinary schools. If we are referring to the duty of the governors, in the case of a county or voluntary school, or indeed of the local education authority, what we are saying is that short of sitting in on every lesson attended by every child at the school with special educational needs neither the LEA nor the governors can secure absolutely that a child's special educational needs are being met. They cannot be a kind of inspectorate. We have no wish to place duties on people that cannot realistically be met. I am sure that any duties imposed by this Bill must be dischargeable if the Bill is to meet the goals we all wish to see.

As a result of this, subsection (5)(a) as drafted takes account of these difficulties while at the same time specifically requiring LEAs in respect of nursery schools, and governors in respect of county and voluntary schools, to use their best endeavours. The wording does not permit inaction; it does not allow them simply to do nothing at all. I indicated in my final remarks on the former amendment how I see some of the kinds of problems that arise in these cases being met by the activities of governors. I hope with that explanation the Committee will agree that the Bill is properly drafted in this respect, and the noble Baroness will withdraw her amendment.

Baroness Jeger

Before I decide to do that, I wonder whether the noble Baroness the Minister can tell me if there will be any monitoring of this requirement. Earlier in the debate there were requests that there should be some sort of follow-up monitoring of the Bill. I am genuinely anxious that this phrase should not be used by dilatory authorities. I should be influenced in my decision if the noble Baroness could tell us whether there is going to be any way of keeping an eye on the use of this phrase as regards the provision of special education.

Baroness Young

I do not know whether I can give a complete assurance to the noble Baroness, but if she looks at Clause 2 she will see in subsection (4) that there is the absolute duty on the local education authority to keep under review its arrangements. I did say, under subsection (4), that 1 thought that probably local authorities would review their arrangements at the annual budget-making time, or as appropriate if some provision became available, or on some such occasion. So there is this absolute duty on the local education authority.

I have already indicated that the DES will be keeping the statistics. I have already indicated—I think it was to the noble Baroness, Lady Fisher—about dissemination of good practice, which, of course, is important. Besides subsection (4) we have subsection (5) which makes it clear that it is also the duty of governors, in the case of a county of voluntary school, and the local education authority by whom the school is maintained in the case of a maintained nursery school that they should use their best endeavours to see that the children who are being educated in an ordinary school are receiving the education appropriate to their needs. What I am saying is that this subsection does not stand on its own; it is part of Clause 2. It is, as it were, a back-up provision to subsection (4).

May I fill in a little of the background. We had long discussions about whether or not this should be included; because it is an unusual provision. On reflection it seems to me right that we should involve governing bodies in this way if we believe that they have a real role to play. I am quite certain that if the noble Lord, Lord Taylor, were here, he would tell us that governing bodies should have a real role to play. The wording has been put in because of the practical circumstances of the case, not in any way to absolve local authorities from their duties or to weaken their responsibilities in this regard.

Lord Banks

I cannot resist saying that it seemed to me that the noble Baroness, Lady Jeger, had scored a bullseye when she linked the reaction of the noble Baroness, Lady Young, to the phrase "use their best endeavours" and her reaction to "could reasonably be made", a phrase which we had earlier. I am wondering whether if I had worded Amendment No. 8 to read "or with the use of their best endeavours" it would have been acceptable to the noble Baroness, or whether that is another hypothetical question.

Baroness Young

I have already answered one question like that for the noble Lord, Lord Banks, and it really is pushing his luck to ask me to answer it a second time round!

Baroness Jeger

I assure the noble Minister that we on this side shall use our best endeavours to keep an eye on the implementation of the clause. Having given the noble Baroness that assurance, and not having had a very satisfactory one from her, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 19 not moved.]

8.13 p.m.

Baroness David moved Amendment No. 20: Page 3, line 18, after ("Governor)") insert ("provided that the Governor so designated has practised experience of special education or of children with special educational needs.").

The noble Baroness said: I beg to move Amendment No. 20. I am sure that all of us know of the different qualities of different governing bodies and different governors and that sometimes there are better bodies than others. This amendment which adds: provided that the Governor so designated has practised experience of special education or of children with special educational needs", is put in as a safeguard against those governing bodies which are not so good as other governing bodies. It is very important in this case to make quite sure that if a governor has this responsibility he or she is really capable of carrying it out. I can see no possible objection to inserting this into the subsection. I beg to move.

Baroness Young

I believe that the noble Baroness may have misunderstood the role of the "responsible person" as set out in Clause 2 of the Bill. The purpose of subsection 5(b) is to ensure that once either the head-teacher or a governor is informed of the special educational needs of a particular pupil, those needs are made known to all the teaching staff who may come into contact with the child. There is no reason why the person who passes this information to the teaching staff need be required to have specialised knowledge himself. His task is to tell others of the existence of the child so that they may use their professional skills to meet an individual child's special needs.

In tabling this amendment I wondered whether the noble Baroness may have had in mind a rather different recommendation of the Warnock Committee that where special classes or units were attached to an ordinary school, a member of the governing body should be specifically concerned with that class or unit. In those circumstances the Warnock Report acknowledged that the designated governor might or might not have had related experience in a special school.

I hope, however that the Committee will accept that it will never be possible to ensure that there is someone on a governing body of every county and voluntary school with personal experience of special education or, indeed, of any other particular facet of the curriculum. I think that that would be imposing something which would be impossible to achieve although a good many schools will, in fact, have someone who is so qualified. I hope that, with that explanation, the noble Baroness will withdraw the amendment.

Baroness David

I should have thought that if somebody is to pass on this information it is much better done by somebody who has some experience and who knows something about the subject. Maybe we could hope that, as there are supposed to be one in five children who will have special educational needs, there might be one in whatever the number may be—12 or 20—governors who also will have some information about this. So I do not think that it is a very satisfactory answer, but I equally do not think that I should do very well if I pressed this amendment at this stage with so few people in the Committee. Therefore, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clause 3 [Provision of special education otherwise than in schools]:

Lord Vaizey moved Amendment No. 21: Page 3, line 32, leave out ("may") and insert ("shall"). The noble Lord said: I beg to move Amendment No. 21. This is really a probing amendment more than anything else and it has to do with the question of the special educational needs of children who go into hospital. Something like 800,000 children every year go into hospital and, of those, about 20,000 stay longer than a month and an additional unknown number stay longer than a month because they are in mentally handicapped hospitals.

There is an increasing problem which the Thomas Coram Research Unit is looking into about the children who go into hospitals which do not have hospital schools and who then leave the hospital to go home. Although the local authorities of course make provision for peripatetic teaching of children who are not well enough to go back to ordinary schools, the parents may not know of the availability of that peripatetic teaching and so there is a kind of breakdown of information. I must emphasise that where there is a hospital school the problem does not arise. I myself took all my public examinations—the School Certificate and the Higher School Certificate—in a hospital school, so I know whereof I speak. Of course it is not possible to arrange that in all the hospitals throughout the country—the units would necessarily be too small.

I should like to ask my noble friend whether, if we laid an obligation—let us say we imposed "shall" instead of "may" in the clause—on the local authority to provide special educational treatment outside the school, I should have covered the class of child to whom this amendment is addressed? In other words, shall I have made sure that arrangements are made between the hospital and the local authority that this particular group of young people—which I must emphasise is quite a large group—is under the constant surveillance of the responsible local authority officers? I am sure that, if my noble friend can give me some assurance along those lines, many of us, particularly the National Association for the Welfare of Children in Hospital, which is very concerned about this group, will be very pleased and I, too, shall be very pleased. I beg to move.

Baroness Jeger

We are very sympathetic to this amendment. It seems that if a child has been assessed as having special educational needs that suggests that he is not totally ineducable and is not one of the very sad cases with which it is only possible to deal in special hospitals or institutions. Therefore, this child must have some education as prescribed by this Act. I appreciate what the noble Lord has said about children in hospital, but of course this clause must also be linked to children who are home-bound. I am wondering whether the Minister could say something about children who are being very much assisted in their education by voluntary organisations by the sort of homes run by the Spastics Association, the British Epilepsy Association and other such bodies whose homes often cannot strictly be defined as schools. I very much hope that this clause would include any of these, what I might call, "learning places" and that once the child has been found a suitable place in which to learn, then there is an absolute duty on the local authority to see that he gets the education which has been prescribed.

Lord Digby

I was delighted to hear that this was just a probing amendment, because I really am worried about the wording. One might think that the local authority officials did not have an understanding of the whole situation. Surely this is particularly a case where you cannot lay down rules from the Government or by statute. This is a case where the local authority "may" do it. Of course, in a number of cases they will do so, but every situation is different. I cannot see the advantage of putting "shall" in the place of "may".

Baroness Young

The main point to which the noble Lord, Lord Vaizey, is drawing attention is very important and I am sure that every Member of the Committee would agree with it. It is the need for good communications between the social services committee, the education committee and, of course, the hospital service. It was a point to which the noble Lord, Lord Alexander of Potterhill, drew particular attention on Second Reading and it is one on which we would all agree. However, as he will know, with the single exception of the Inner London Education Authority, social services and education departments form part of the same local authority. The actual effect, therefore, of this amendment would be to require a local authority, which includes a local education authority, to inform the local education authority of the existence of a child with special educational needs if that child happens to be in hospital or, indeed, elsewhere. It is very difficult to say that by writing such a provision into legislation, it would have real meaning except, of course, in Inner London.

I recognise the point that the noble Lord has made about children in hospital and the point which the noble Baroness made about children possibly being educated by voluntary societies, because, of course, Clause 3 is concerned with the education of children otherwise than in schools, but I believe that there are better ways of tackling the problems of improved communications, both with the social service and with the education departments within the local authority. This is one area which we cannot cover in legislation but which must be covered in guidance. I should like to give the Committee an assurance that one of the points we shall stress is the need for co-operation between local authority services, and this will come in post-legislative guidance, to which I have already referred. I believe that this would be a much more appropriate way of dealing with what I recognise is something about which many people are concerned: the problem of communications is always an important one and is often difficult to arrange, but it is not one of which we are unmindful, and we shall be referring to it in guidance rather than in primary legislation. With that assurance, I hope that the noble Lord will withdraw his amendment.

Lord Vaizey

I am grateful, first to your Lordships' Committee for this useful and interesting mini-debate, and secondly to my noble friend for the care and consideration with which she has answered the points that we have made. I venture to differ from my noble friend, Lord Digby, about this. Perhaps I could give a personal example. I left hospital in the August of one year and did not go to an ordinary school until the following January. As I recollect, during that time there was absolutely no communication whatever between my parents and the education authority, which in those days was the London County Council and which I suppose was one of the great educational authorities of the country, and there was no communication whatever between the hospital—which in those days was owned by the London County Council—and the London County Council in the role of an education authority. To believe that because they are the same authority there is communication between different branches is, quite honestly, in the realm of optimism.

So there is a serious problem of communication, and an increasing one. Take, for instance, the child who is knocked off his bike, who spends a month in hospital, who is partially restored and who then goes home. The family wait and the school does nothing; the parents do nothing, and the matter can drag on. In fact, all local authorities have perfectly good arrangements. When the child is in the orthopaedic ward of the general hospital they can send a peripatetic teacher there and also one to the home. So communication is a serious matter. My noble friend has given me a very full and fair assurance about guidance. I am perfectly sure that she is correct and that it is much better to have this in notes for guidance than in primary legislation. But I hope that the notes for guidance are jolly tough and are followed up. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.25 p.m.

Baroness David moved Amendment No. 22: Page 3, line 34, at end insert ("A parent shall be informed of their right of appeal against a decision made under this section, and the provisions of Section 8 of this Act shall apply").

The noble Baroness said: It would seem to me to be fair that if a child is said not to be appropriate for education in a school, the parents should have the right to appeal against that decision, just as they can appeal against a placement in any particular school. It is a very straightforward matter. This amendment simply emphasises the rights of parents, which I hope a good many amendments that we have tabled to this Bill will try to do. It could be that the parents feel very strongly that it is the wrong decision, and I think that they should have the opportunity to go to the appeal committee, just as happens in other parts of the Bill. I beg to move.

Baroness Young

In speaking to this amendment, I think it might be helpful if I went over the powers that are given to local education authorities in this clause and which may be exercised in respect of any child with special educational needs, whether or not that child has the protection of a statement under Clause 7 of the Bill. Most usually these powers will be used to provide education to children who are in hospital or at home during a period of convalescence, or at home waiting a placement in a special school. Occasionally they will also be used to provide home tuition for a child who may suffer from school phobia.

First, let me consider the position of a child for whom a statement is being maintained under Clause 7 of the Bill. In those circumstances, the special provision to be made for that child and where it will be arranged will be set out in the statement. In that case the parents will have had the opportunity to comment on the educational arrangements and, if dissatisfied, to take his case to a local appeal committee and ultimately to the Secretary of State. If at a later date the local education authority proposed to alter the statement, then the parent must be notified, as is set out in paragraph 6 of Schedule 1 to the Bill, and the whole appellate procedure set out in the Bill reopened for the parent. That is if the statement is altered. Therefore, we believe that the proposed amendment is unnecessary in respect of children with statements.

Turning now to the child with special educational needs but without a serious learning difficulty requiring the making of a statement, that child would be educated in an ordinary school. The only reason why a local education authority may wish to exercise its power under Clause 3 in respect of such a child would be in circumstances where the child has to receive hospital treatment, perhaps for an appendicitis, a complicated fracture or some such ailment, which could affect any child irrespective of whether or not that child has special educational needs.

There is, perhaps, a third possibility where a local education authority may need these powers; that is in cases where a child with special educational needs is in an ordinary school but is expelled from it, and the local education authority wishes to arrange home tuition pending a full-scale assessment of the child's needs and the making of a statement.

Those are the only circumstances that I can envisage where this clause would come into effect, and in none of them would it be appropriate for parents to have rights of appeal as envisaged by the amendment. Parents will either have such rights if a child is subject to the statement or, alternatively, will not need such rights if for medical purposes the child has to be in hospital for only a short period of time. With that explanation—and I have given rather a full one because it is an important point and I wanted to clarify it to the Committee—I hope that the noble Baroness will not press her amendment.

Baroness David

I thank the Minister for giving that very full reply. I should like to study it carefully and will not make up my mind at this moment whether finally to withdraw it, because that may not be the right thing to do. I shall look at what she has said and decide whether or not to return to the matter on Report. But just for now I shall withdraw the amendment.

Amendment, by leave, withdrawn.

8.29 p.m.

Baroness Faithfull moved Amendment No. 23:

Page 3, line 34, at end insert— ("(2) If home tuition is recommended the local education authority shall provide at least 15 hours a week at home, or at a prescribed Centre.").

The noble Baroness said: I beg to move Amendment No. 23. The noble Lord, Lord Digby, will be glad to hear that this is a probing amendment. We have discussed this amendment from a different point of view when we discussed the last two amendments. I speak as an ex-director of social services. May I tell your Lordships what, in fact, happens. I shall now refer practically exclusively to emotionally-disturbed and maladjusted children. The child is excluded from school, and in many cases up and down the country that child receives a peripatetic teacher, sometimes, I regret to say, for one morning a week; so that the parents are left to deal with the emotionally disturbed and maladjusted child for the rest of the time. What very often happens in fact is that during that time the child gets into trouble, is brought before the juvenile court and is, perhaps, committed to care. Alternatively, if the child is very emotionally disturbed and difficult, he is admitted to hospital.

We talked earlier about the efficient use of resources. Taking into account all departments of the local authority and not just the education department, the cost if the child is committed to care is something like £110 a week. If the child is sent to a community home for education, the cost is something like £150 to £180 a week, or even more. Because the child has only received tuition one morning or one hour a week, he gets into trouble and has to be committed to care. This is not a hypothetical case—this is reality. I therefore maintain that this is not an efficient use of resources in the local authority overall. It may be an efficient use of resources in respect only of the education department, but not if the matter rebounds on to the social services, or on to the health service if the child is admitted to a mental hospital.

I have been very specific in recommending that there shall be at least 50 hours a week tuition at home "or at a prescribed centre". By "centre" I was thinking in terms of day centres which we very often use or, alternatively, a hospital. I realise that this amendment is probably better for use in regulation rather than in primary legislation, but I felt bound to bring this amendment before your Lordships' Committee because it has to be admitted that we in this country have many children in custodial care under various social service department Acts. I believe one of the reasons for this—although perhaps not a very big one—is that when children are excluded from school they are under no control at all and the parents have a very difficult time.

Baroness Jeger

I have great sympathy with the intentions of the noble Baroness, Lady Faithfull, and I shall listen with great interest to what the noble Baroness the Minister has to say. I have spoken to some of the teachers involved in home teaching. Some of them find the prospect of spending 15 hours a week with the same child too much for them and too much for the child. It really means spending three hours a day with the child, and some of these children are so disturbed and difficult that they certainly cannot benefit from three consecutive hours of one-to-one teaching. It might do these children more good if someone took them out for a game in the park. I feel that there has to be some flexibility so far as individual cases are concerned. Two hours tuition a day would come to ten hours tuition a week, but as the noble Baroness herself has said, it is difficult to put these things into the statute. I know that this goes against most of what I have been saying on every other amendment but it seems to me that this particularly sensitive issue of deciding by statute for how long one brings a peripatetic teacher into the home does not have a place in this Bill.

Baroness Faithfull

May I point out to the noble Baroness, Lady Jeger, that I absolutely agree with her—but I just wanted to make the point that if a child does not get that extra help it is going to leave the home in some other way; through another channel. I included in the amendment the words "or at a prescribed centre" and if the child is going to be too difficult for a peripatetic teacher to deal with for three hours on end—and I have every sympathy with the teacher—one would hope that the local authority would have alternatives, either within the school or outside the school for these particularly difficult children.

Baroness Young

I am glad that my noble friend Lady Faithfull said in her opening remarks that this was a probing amendment. I share her concern while acknowledging the difficult circumstances in which local authorities are sometimes placed. I do not think we can tackle the deficiencies in the level of provision in this area by means of legislation. Home tuition is provided to cover a vast range of different circumstances, and it is often these circumstances which ultimately govern how much or how little provision there will be; this was the point that the noble Baroness, Lady Jeger, was making. For example, if a child has just left hospital and is convalescing at home before returning to school, the amount of tuition that he can receive will be governed by his state of health. Similarly, if a child is awaiting placement in a special school, there might be a limit to the amount of tuition which the child is either able or willing to receive. We see this very much as an area where the local education authority must, for good reasons, be allowed flexibility over the kind of provision to be made.

I should like to clarify one point. If a child is the subject of a statement under Clause 7 of the Bill, and the statement specifies home tuition, then the parent may challenge the amount of provision made if the parent considers it insufficient to meet the child's special educational needs. I think this is a helpful provision. I hope that with this explanation the noble Baroness will not press her amendment. If the noble Baroness has some particular cases in mind, I shall always be ready to look at them— if she or any other members of the Committee will let me have details. With that, I hope that the noble Baroness will withdraw her amendment.

Baroness Faithfull

I am almost grateful to the noble Baroness the Minister for her reply. I am sure that psychiatrists, educational psychologists and social workers will be very grateful to hear that it may be possible for a parent to challenge the health education being given while the child is at home. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4 agreed to.

Clause 5 [Assessment of special educational needs]:

[Amendments Nos. 24 to 28 not moved.]

8.38 p.m.

Baroness Darcy (de Knayth) moved Amendment No. 29:

Page 5, line 6, at end insert— ("( ) Where a local education authority make an assessment of a child under section 5(4) the parent shall have the right to see all the professional reports and other evidence on which the assessment was made by the local education authority and the local education authority shall have a duty to inform him in writing of this right.").

The noble Baroness said: There are a number of amendments on this subject of the right of parents to have full access to reports in relation to the education of their children. There are amendments not only in my name and in that of the noble Baroness, Lady David—Amendments Nos. 38, 77 and 82—but also Amendment No. 42, in the name of the noble Lord, Lord Renton, and Amendment No. 73 in the name of the noble Earl, Lord Radnor. Therefore, perhaps it would be appropriate to have a general discussion on the whole question, which I believe is a vital one.

The White Paper suggested that the view was widely held that it would be wrong to expose fully to parents the professional reports lying behind the record, which is now called the statement. If this view is widely held, then certainly it is only widely held by the professionals and not by the parents themselves. The notes which the Department of Education and Science have kindly supplied explain that indeed the Bill does not afford parents the right to disclosure of professional reports by the local education authority, and that disclosure will remain a matter of professional discretion. If the proposals for secret reports are enacted by regulations, many local authority education personnel—not all of them professionals—will enjoy unrestricted access to confidential reports on handicapped children while the parents, who are the people most directly and intimately concerned with the children's welfare, will be refused access. I believe this would be an unjustifiable infringement of parents' rights. Furthermore, they could not possibly fulfil their duty to ensure that their children receive the education suitable to any special needs they may have.

Amendments Nos. 77 and 82 in particular seek to give parents full access to information and to control the circulation of such information. This is a terribly important issue because, first, if records and reports are kept secret from parents it makes it very difficult for them to decide whether or not to appeal against a decision by a local education authority and, secondly, it makes it very difficult for them to appeal successfully.

At second Reading, both the noble Baroness, Lady David, and I mentioned the United States Education of All Handicapped Children Act 1975, under which parents have the right to examine all records relating to their children's education. I must stress that this excludes private notes which are made solely for the benefit of the writer as an aide mémoire.

The American experience is that access to reports produces better reports. Professionals are not infallible, as some parents of handicapped children know to their cost. One of the main objections from parents and, indeed, from the voluntary organisations is that at present reports are often factually inaccurate and highly judgmental. It is always the case that legislation is unnecessary where good practice exists. For example, in some areas there is already close cooperation and good practice on referral of handicapped children from the area health authorities to the education authorities. But there is a need to protect parents where such good practice is not in existence.

It was remarkable when we had a meeting about this Bill last week that, although the organisations concerned with the different types of handicap differed quite considerably in their views on the degree of integration which was to be desired, they were unanimous in their opinion that parents should have access to all information on their children, and the Advisory Centre for Education also was strongly in favour of this. The argument often presented is that reports may contain sensitive information—for example, that a child is dying, or is dangerously ill. But I think that this demonstrates a paternalistic and over-protective approach. Parents who do not want to know are unlikely to want and ask to see the record, and those who have suspicions and request access to records should not be denied the opportunity of seeing them.

Surely there can be nothing worse for a parent than to learn in the first place that his child is handicapped. The parent who requests information is going to be the type of parent who has lived day and night with all the problems that handicap entails. He knows only too well the heartache that it brings. But if the information that he requests, when he gets it, brings further distress, he still has the right to know it, and the advantages that full access to the information would bring are vital for him to achieve what is best for his handicapped child.

There is quite a bit to be said in favour of early access to information—for example, when the assessment has been made. Amendment No. 29, which I am moving now to Clause 5, seeks to ensure this, as does Amendment No. 73 to Schedule 1 in the name of the noble Earl, Lord Radnor. The right of full access to information would thus also apply to parents on whose children the LEA had decided not to maintain a statement. I think they too have the right to know what the reports contain, and they will also need to know if they are going to decide whether to appeal to the Secretary of State against such a decision under Clause 5(5).

Our Amendment No. 38 to Clause 7, if accepted, would ensure that parents were made aware of the right to see reports before a statement is made, when the LEA propose to make a statement on the child. I think Amendment No. 42 to Clause 7 in the name of the noble Lord, Lord Renton, would do this only after the statement is made, which would in fact mean that parents would have to make representations to the LEA before they knew what the information was. Access to all information at an early stage is, I think, likely to mean fewer appeals, as otherwise parents may appeal out of ignorance about the evidence on which the assessment, or later the statement, was made. Fewer appeals would of course mean the saving of resources.

I must apologise for having spoken at such length, but I really feel that it is a vital issue. Is it not time that we gave parents of handicapped children the same rights as American parents have enjoyed for the past six years with, it appears, very satisfactory results? I beg to move.

8.44 p.m.

Lord Renton

As the noble Baroness, Lady Darcy (de Knayth), has pointed out, her Amendment No. 29 is really an alternative to Amendment No. 38 and my Amendment No. 42. She suggested that it might be a good thing if we discussed the amendments together because we all have the same motive, and it is just a question of how our purpose is best achieved. May I say that having heard the noble Baroness I have a very open mind. It may well be that she is right in saying that if parents are to be given this information they should be given it at the earlier stage while the assessment is being made instead of having to wait, which they would have to do if my amendment were accepted, until after the statement has been made, and therefore the further information would merely form the basis of a right of appeal.

Bearing that in mind, I hope that my noble friend the Minister will be able to tell us tonight that she accepts in principle that parents should have, in general at any rate, a right of access to the information; to all the information. This matter was discussed at tremendous length in another place, and God forbid that one should attempt even to summarise the arguments that were used there. I think they really speak for themselves. All that I would tell the Committee is that I know from my own experience as a parent, and that of other parents too, that it is bad enough to have the shock of realising that your child is mentally handicapped and will be so for life, but not to be told why this is a permanent state of affairs is really very hard indeed to bear on top of the initial shock.

There was a consensus reached between all concerned in another place on broadly these lines: something ought to be written into the Bill to give the parents the right to all relevant information, but that—and this I have to concede, and I do not think that the noble Baroness would quite agree with me about this—there are exceptional cases in which it could do more harm than good for the parents to be told the whole of the truth, including the whole of the medical truth. Alas! there are some cases—and these cases do not refer so much to mental handicap; they relate to children who are psychologically disturbed, which is quite a different situation—in which the home circumstances, the inability of the parents to get on with each other, the failure of one of the two parents to act as a parent should, are factors which have led to a psychological disturbance on the part of the child and which have caused the child to become not only emotionally disturbed but educationally backward as a result. One has to concede, therefore, that there are these exceptional cases.

I was discussing this the other day with an experienced medical man, a psychiatrist, and discussed the issue which arises on these amendments. He said to me—and naturally he shall be nameless—"Well, you can write what you like into the Bill, but if you make it too stringent you will be defeating your own object, because medical men will just refuse to put on record everything that has a bearing on some of the cases". This would happen in a small minority of the cases, no doubt, but it is a difficulty.

However, the way to overcome the difficulty—I think it is the only way, and it is a hard way—is for my noble friend, with the skilled help of the parliamentary draftsman (while I often have reasons to suggest improvements in the drafting of legislation I would say that the draftsman on this Bill has done extremely well in sometimes very difficult circumstances, and although he has had to make the Bill dovetail with the whole of the Education Act 1944 and the various amendments to it, he has skilfully avoided, to a remarkable extent, legislation by reference) to find a form of words which will give a general right of access to parents to all information, including medical information, but with a let-out for the very small number of exceptional cases. Then I hope we should all be satisfied. But as to the place where this provision should be written in, on reflection I prefer the place suggested by the noble Baroness, with all the careful thought she has given to this as to so many other parts of the Bill, to the place which I have suggested.

Lord Davies of Leek

I hope the noble Lord, Lord Renton, will permit me to say that, with great skill, he has shot the horse on which he was galloping to freedom. He adduced a skilful argument, but I must ask him a very simple question: who is to decide the exception? That is all one has to ask. A parent is a parent, the person who bore the pain of bringing the child into the world, and we are all aware of parents who have brought up deformed children and have learnt to love them. I think it is ridiculous to say that parents cannot face the facts. It is much better for us to have freedom of information for parents than for some official, medic, lawyer or whomever you will to have the authority to withhold information. There is no need for a long debate on this issue. The question which cannot be answered fairly and squarely is who is to decide the exception, and in the last analysis parents should be permitted to know.

Lord Winstanley

My mind is certainly not as open as that of the noble Lord, Lord Renton, on this point. I and my noble friends on these Benches would support him entirely in Amendment No. 42, but I think we should all wish to go further and support the noble Baroness, Lady Darcy (de Knayth), in Amendment No. 29, which goes further and probably fulfils the need more fully. I say that not only on behalf of my noble friends on these Benches but I say it carefully and advisedly as a professional, as one of those professionals who has from time to time had the responsibility of making reports of the kind about which we are speaking. I think the sensitivity of professionals in these matters and the sanctity of professional reports are just a little misplaced. In my view, if a person—a doctor, child psychiatrist or teacher—does not have the ability to couch the true facts in terms acceptable to the parents, that man or woman does not deserve the name "professional".

The noble Lord, Lord Renton, said much about the parliamentary draftsman. I suggest that if some of these reports were written by the parliamentary draftsman there would be no danger in the parents seeing them at all because they would not have the slightest idea what they meant. I fully accept Lord Renton's point that there are certain dangers and risks in knowledge and openness. That is a factor of which we must be aware in terms of the admitted dangers of knowledge. But whatever may be the dangers of knowledge, to parents or any others, they are nothing compared with the dangers of ignorance.

I really believe that the parents in these cases genuinely have a right to all the information. I also believe it is perfectly possible for the professionals concerned, even in the difficult and sensitive cases to which the noble Lord, Lord Renton, referred, to draft truthful, accurate and comprehensive reports in terms which would not be upsetting or damaging to the parents; and with those words I warmly support the amendment in the name of the noble Baroness, Lady Darcy (de Knayth).

The Earl of Radnor

I too support the amendment, because I cannot conceive of a situation where anyone is more important in a child's life than the parents, be they professional or whatever. I also follow many noble Lords in believing that the parents should know everything about their children. Speaking as a layman, I am thinking of what one might call the true medical aspect if one's child is ill in a medical sense—inside the body perhaps rather than inside the mind—when one would want to know every detail in order to make a parental decision as to what should be done. This hiding away of information behind a professionalism which I otherwise admire very much indeed would, in this instance, be absolutely wrong.

While listening to noble Lords speaking on this question I jotted down three points which we should bear in mind. First, if only for the good of the child, the parents should know everything. I quite sec the risks which my noble friend Lord Renton envisages, but it is the good of the child we are considering, first and foremost. Secondly, obviously in more than 99 per cent. of cases it will be for the peace of mind of the parents, but that is something which one should not discount too readily. Thirdly, what nobody so far has mentioned is the fact that it will prevent a tremendous amount of mistrust growing up between the local education authorities, or whatever other authorities are involved, and parents, and I have come across a lot of that sort of mistrust in the past. It is a pity because that mistrust grows and becomes destructive to the main aim which, to go back to the beginning of my remarks, is to do the best for the child. Therefore, let us at the appropriate stage—and I should not like to say what stage that should be—have a full revealing of the papers.

Baroness Young

The noble Baroness, Lady Darcy (de Knayth), has moved an amendment on one of the most important aspects of this whole area of the Bill; it is one amendment, but there are half a dozen down dealing with various aspects of the major issue of confidentiality. I wish to make it clear at the start that this is a matter which has exercised the mind of the Government more than almost any other as a general principle in the Bill, and I believe it exercised the mind of the former Administration when they were considering the Education Act 1976. It is one on which it is extremely difficult to make quite sure that one has reached absolutely the right conclusions.

I have listened carefully to all that has been said, I have re-read carefully what was said about this in another place at all stages of the Bill, and of course what was said in this House on Second Reading, and I shall try to answer some of the points that have been made and make what I hope the Committee will consider to be a constructive proposal at the end of my remarks.

I was grateful for what my noble friend Lord Renton said, and I am sure the parliamentary draftsman will be grateful for his helpful comments on the drafting of the Bill. That, incidentally, has not been an easy task, involving, as it were, translating the Warnock Report into legislation. My noble friend indicated a number of areas where it is very difficult to be quite sure that parents in all circumstances should have full and open access to all professional reports.

The noble Lord, Lord Winstanley, speaking as a professional, said he believed it was possible to draft accurate reports which need not be damaging to the parents. Well, I am quite certain that the noble Lord can do that. However, if I may say so to him—and I do not speak as a doctor—as he will know, it is not an ability that is shared by the whole of his profession. Some professionals make the point that sometimes it is very difficult to state what is wrong in language that is readily understood by a parent, and if it is not readily understood, it might not necessarily be very helpful. Of course, talking to the professional involved would be much more helpful than reading the report. I feel that this is a matter of practice, rather than of principle.

My noble friend Lord Radnor made what I thought was a very important point; namely, that in the whole of this question we should be putting the good of the child first. One factor that must emerge from all the consideration is that the good of the child will ultimately be best served by professional people being able to report accurately one to another what they think is wrong with the child. On an amendment of my noble friend Lord Vaizey we debated the whole problem of communications, and if the point involved is important, communications become much worse if it is not put down on paper but is conveyed simply by word of mouth.

Turning to this series of amendments—we are dealing here with a principle—I would refer to the view of Mrs. Warnock and her committee. The committee stated: Whether or not parents are shown the actual reports on their children must be a matter for the judgment of the professional concerned. Some professionals may be ready to show parents their actual reports on children, but for others the knowledge that parents would be able to see their reports leads to the production of less detailed reports. The overriding consideration should always be whether or not it is in the child's best interests that the parents see the report on him". That is the view of the Warnock Committee, and here I believe that in a sense we have the nub of the problem: what is to be in the child's best interests.

In regard to this matter we have in the Bill as an overriding principle sought to involve the parents as much as possible. If the noble Baroness and other noble Lords who have spoken on this question look at the Bill, they will see that it provides for consultation with parents throughout the assessment procedures. A parent has the right to ask for his child to be assessed when the child is under the age of two. When the child is assessed the parent has the right to be present at the examination by the multi-disciplinary team, the right to comment on the statement when it is in draft and when it is made, and the right to be brought in at every stage of the procedure.

It is most important that during the whole of the assessment professionals concerned should involve the parents so that they can understand the nature of their child's problems. Even if professional reports were made available to parents, many parents might not understand them because of the technical language in which they would be couched, and I believe that that would be a particular danger with some medical or psychiatric reports.

Under the provisions of the Bill parents will receive a copy of the LEA's statement of their child's special educational needs, and the Secretary of State must lay down the form of the statement. This is all set out in Schedule 1. I can assure the Committee that the statement will be framed in such a away as to contain all the information about a child's special educational needs that the parent must know. On reflection, it is our view that where parents need to know about matters which can be, and I think frequently are, highly painful or technical, it is much better if the information is communicated to them in a discussion or interview, rather than through a written report.

When the matter was considered in another place and an identical amendment was being discussed, a suggestion was put forward of a possible role for a named person to relay sensitive information to the parents. However, having considered the suggestion and discussed it at length, we do not feel that a named person is necessarily the person best fitted to fulfil this particular role. But we want to pursue the matter further. We are very anxious to follow up every possibility of improving the communication of information to the parent, but without endangering the frankness of professional reports through giving parents a blanket right of access to them.

In another place we undertook to look at the possibility of introducing in your Lordships' Chamber an amendment which would give parents who were dissatisfied with the contents of the statement a right to discuss it with the professional concerned. We stand by that undertaking, and it is to me a matter of regret that I do not have before the Committee an amendment which would I hope go some distance towards meeting the concerns of the noble Baroness and other noble Lords who have spoken, and which certainly would go towards meeting the undertaking that we gave in another place. The only reason why I do not have such an amendment at this stage is that there have been problems of drafting, but I can give an assurance to the Committee that I shall come forward with an amendment on those lines at Report stage.

I hope that that will meet an anxiety that I understand. I hope that it will make it much more possible for parents to discuss with the professionals their child's statement and the information that lay behind it. I think that from the point of view of the parent that is better than agreeing to an amendment which would give them an absolute right to see the confidential reports. I think that that course would be acceptable to the professionals because it is in line with the best practice, and I hope that it will meet what I recognise are real anxieties.

I have considered this matter at great length and perhaps I may state in the following terms how I think it might work out. I have perhaps been fortunate in my life in that there have been very few occasions on which I have ever had to convey very bad news to someone, but on the rare occasions when I have had to do it I have had the experience, which I think others have had, of finding that the person has taken the news surprisingly well, in a sense. There has not been a very great reaction, and I think that that has been because the person has had a sense of shock on hearing the news. In a way nature comes to the person's rescue and he rests while recovering from the shock. After a while, when he has recovered, the questions come very rapidly—How did this happen? What is it all about?

Trying to put myself in the shoes of someone who faces this, I see a mother or a father with their handicapped child terribly concerned and asking, under the age of two, for an assessment; or perhaps the child has a terrible accident and something happens to it, and at the age of five it needs to be assessed. It must be a terrible shock to the parent on learning of this, and really what the parent wants is not just a statement. The parent wants the opportunity to discuss the matter with someone who understands the problem and knows what it is about.

In this legislation, what we have tried to do is to provide the maximum number of opportunities for the parents to be involved in the assessment of their child, and what I hope the amendment that we shall bring forward at Report stage will do is this. Ultimately, if at the end of this process the parent still has not the confidence of the authority, or whatever it may be, our amendment will give the parent the opportunity to talk to one of the professionals who has made the assessment and go through all the reasons why the decision has been taken and ask all the questions with which they are bound to be concerned.

I hope that, with those sort of assurances, the noble Baroness will see that we are hoping to go some way to meet her amendment, and that she will feel able to withdraw the amendment that she has put down. At any rate, I hope she will reflect very seriously on what I have said; and if there is more discussion that I could have between now and another stage with any noble Lords, particularly on this point, I should be very glad to do so.

Lord Beaumont of Whitley

There is, I think, one key question which one can ask the noble Baroness at the moment—even though one realises that the amendment is not yet drafted, nevertheless a great deal of thought must have gone into it—and it is this: If the parents are not satisfied with the information they get, and if they use the procedure which will be produced by an amendment and go and talk to the professionals, then, having talked to the professionals and having gone through what I might call the process which it may be softens the blow or explains in human language some of the very difficult personal problems that are involved, will they have a right to see the written report? I think this is vital, because that will meet most of the objections that have been made—that when one sees the written report in that kind of way it can be misunderstood, or it can be a frightful shock. I should have thought that, having been given that opportunity, in the last resort—after all the interviews and after everything they are given in that way—they ought to have the right to see the report. I think this is a key question.

Baroness David

I should very much like to support what the noble Lord, Lord Beaumont, has said. We are grateful, of course, that the Minister is trying to meet us in some way, but without seeing the amendment the situation is very difficult indeed. This assessment will be made by a multi- professional team. Presumably the wretched parent will not be faced by the whole team—I think that would be very alarming—but, if faced by one of them, which will it be? Do we assume that the whole team has agreed on what is going to be done? I think there are a lot of difficult questions about this. Even fairly sophisticated people, as most of us, I would say, probably are, always forget to ask half the questions that we want to ask when we go to see our doctors. I certainly do, although I do not have to go very often, I am glad to say. But one does suffer, when meeting these sort of people, in trying to remember all the things one intended to ask.

So I am not altogether happy that this is going to be a satisfactory solution. If, as the noble Lord, Lord Beaumont, said, having met the professional and had a discussion, the parent is not satisfied, and if access to the reports is then available, I think that would be a different matter. But I do not think that I am going to be satisfied with the amendment which is likely to come up, although, of course, it is hard to say for certain until it has been seen.

Lord Renton

Can my noble friend tell us whether her proposed amendment would be an amendment to Clause 5 or an amendment to Clause 7? It is, I think, rather important for us to have some idea of that. I must say that I started off, as I said earlier, with the assumption that really we could not expect all the information to be provided, or as much information as I hoped to get, until the statement had been made; and then, along with the good advice I had from the man at MENCAP who has been advising me, I drafted Amendment No. 42 as an amendment to Clause 7.

It would seem to follow from what my noble friend said that her proposed amendment will be an amendment to Clause 7 and will therefore be something which would follow the statement. But it might be that a good deal of trouble would be saved, and that a less stringent amendment might be accepted, if it came earlier; namely, as an amendment to Clause 5. I was wondering whether my noble friend could give us an idea which of the two possibilities she has in mind.

Baroness Young

I can answer my noble friend's question straight away. The answer is that the amendment would be to Clause 7. It would follow the making of a statement. It would be yet another procedure and, therefore, would follow logically on Clause 7. I take Lady David's point. It is a matter of great regret that I have not got this amendment but it is very difficult to draft. I do not say that because it is something we have just thought about. We have been considering it for a long period of time. I was particularly anxious to have it for this Committee stage. It will come. It is very difficult to take for granted an amendment you have not seen. I take that point.

I do not want to mislead the Committee or to mislead either the noble Baroness, Lady David, or the noble Lord, Lord Beaumont, over what I am talking about. He asked a specific question. I thought that in my remarks in answer to the amendment of the noble Baroness I had made it clear that this does not give an absolute blanket right to see the professional report. I have said that before and I repeat it. What we are saying is that parents would have a right to discuss the statement when made. After all, they would not be discussing it with somebody they have not seen before. The statement will be made by a multi-disciplinary team that will probably include someone from the educational world, probably a psychologist, probably a doctor, or a combination of perhaps two out of three, whoever is regarded as appropriate, or another specialist for a particular handicap.

I take Lady David's point that it would be an alarming experience suddenly to be summoned before one of these people and to have to think of the questions. I would hope that the parents would automatically see the statement which has been made about their child; they will have the opportunity to reflect on the statement; and this will arise if they are dissatisfied with what the statement says the educational provision should be for their child. The amendment would give them the opportunity to discuss the statement further with one of the people who are involved. I see no reason for thinking that this need be an alarming experience, in the sense that the parents will have been present when the assessment was made, will have seen the statement in draft and will have commented on it; and will have met the people before. They will have a chance to think about the statement before requesting the opportunity to see someone who was involved in drawing it up. They will have time to think about questions that they want to ask.

I would hope that that would be a helpful way of going very thoroughly into the matter. At the end of the day, these matters will rest on a degree of confidence. That must inevitably be so. We cannot legislate for that confidence but we can try to legislate for a process that will build up that confidence. That is why I have some hopes that my amendment will go some way, quite a long way, to meeting the concerns of parents.

Baroness Darcy (de Knayth)

I should like to thank the Minister for her reply. She had thought hard about it and I appreciate that; but she has not convinced me that her proposed amendment will go all the way to what I want. I am glad that the noble Lord, Lord Renton, said that he thinks that the amendment that I moved is in the right place, and then I was given great confidence and enthusiasm by the noble Lord, Lord Winstanley, who, talking as a doctor, gave his support. The noble Lord, Lord Beaumont of Whitley, got the crucial point—would the parents have the right to see the report after they had had this interview? It is plain from the Minister's reply that there is not an absolute blanket right and, as the noble Baroness, Lady David, has said, the decision as to what would be revealed would, in the end, lie with the profession. I think that noble Lords have convinced me that we have the amendment in the right place. I think it is high time that we did what has been done in the United States for the last six years; so, regretfully, I must press the amendment.

9.20 p.m.

On Question, Whether the said amendment (No. 29) shall be agreed to?

Their Lordships divided: Contents, 37; Not-Contents, 60.

Airedale, L. Jeger, B.
Alport, L. Jenkins of Putney, L.
Ardwick, L. Llewelyn-Davies of Hastoe, B.
Bacon, B. Lovell-Davis, L.
Beaumont of Whitley, L. Mishcon, L.
Birk, B. Peart, L.
Bishopston, L. [Teller.] Pitt of Hampstead, L.
Brockway, L. Radnor, E.
Brooks of Tremorfa, L. Renwick, L.
Collison, L. Stedman, B.
Darcy (de Knayth), B. Stewart of Alvechurch, B.
David, B. Stewart of Fulham, L.
Davies of Leek, L. Stone, L.
Elwyn-Jones, L. Taylor of Gryfe, L.
Ewart-Biggs, B. Tordoff, L.
Hanworth, V. Underhill, L.
Hatch of Lusby, L. Wells-Pestell, L.
Houghton of Sowerby, L. Winstanley, L.
Ingleby, V. [Teller.]
Airey of Abingdon, B. Inglewood, L.
Auckland, L. Killearn, L.
Avon, E. Kinloss, Ly.
Bellwin, L. Long, V.
Belstead, L. Loudoun, C.
Boardman, L. Lyell, L.
Boyd-Carpenter, L. Mackay of Clashfern, L.
Brougham and Vaux, L. Macleod of Borve, B.
Caithness, E. Marley, L.
Campbell of Alloway, L. Marshall of Leeds, L.
Campbell of Croy, L. Massereene and Ferrard, V.
Cathcart, E. Mottistone, L.
Chelwood, L. Murton of Lindisfarne, L.
Cockfield, L. Newall, L.
Colville of Culross, V. Pender, L.
Crathorne, L. Platt of Writtle, B.
Cullen of Ashbourne, L. Portland, D.
Denham, L. [Teller.] Rankeillour, L.
Digby, L. Renton, L.
Drumalbyn, L. Sandys, L. [Teller.]
Faithfull, B. Sharples, B.
Ferrers, E. Skelmersdale, L.
Gainford, L. Strathcarron, L.
Gardner of Parkes, B. Trenchard, V.
Glasgow, E. Vaizey, L.
Glenarthur, L. Vaux of Harrowden, L.
Greenway, L. Vickers, B.
Gridley, L. Vivian, L.
Grimston of Westbury, L. Windlesham, L.
Hornsby-Smith, B. Young, B,

Resolved in the negative, and amendment disagreed to accordingly.

[Amendment No.30 not moved.]

9.28 p.m.

Baroness David moved Amendment No. 31:

Page 5, line 11, at end insert— ("( ) The Secretary of State shall prescribe by regulations the factors that are to be taken into account by a local education authority in deciding that they are not required to determine the special educational provision that should be made for a child.").

The noble Baroness said: I should like to speak to Amendment No. 31, which is to Clause 5, and to Amendment No. 36, which is to Clause 7, at the same time, because one asks that the Secretary of State shall prescribe by regulations the factors to be taken into account by a local education authority in deciding that they are not required to determine the special educational provision to be made for a child. The other one asks that: The Secretary of State shall prescribe by regulations the factors that are to be taken into account by a local education authority in deciding that they should determine the special educational provision that should be made for a child. So one goes one way and one goes the other, but I do think it will be perfectly possible to speak to these together.

If a statement is made on a child under the provisions of Clause 7, it will decide that the child can be educated in an ordinary school only if the efficiency criteria in Clause 2(3) are met. If no statement is made, the child can be educated in an ordinary school without restrictions of these efficiency criteria, but merely with those of Section 6 of the Education Act 1980. Whether or not a statement is made on a child is therefore crucially important for the future of the child, and the factors that decide this are therefore also crucially important. They are so critically important that they cannot be left to the discretion of individual education authorities. I know that local authorities may think this is interference and that they can cope perfectly well themselves, but I think we need to take precautions against the authorities which are not quite so farsighted and not so good.

The Secretary of State, in Schedule 1, Part 1, 1( l), is going by regulations to make provision as to the advice which a local authority are to seek in making assessments, so I do not see why we cannot have these extra regulations made by the Secretary of State about these two very important aspects. I beg to move.

Baroness Darcy (de Knayth)

I should like to speak very much in favour of this amendment, because it is crucially important and this ought to be done by regulations.

Baroness Young

As the noble Baroness, Lady David, has said, Amendment No. 31 requires the Secretary of State to prescribe by regulations the factors that are to be taken into account by a local education authority in deciding that they are not required to determine the special educational provision that should be made for a child, while Amendment No. 36 does this the other way round and the Secretary of State would be required to make regulations stating the factors that are to be taken into account in deciding whether to assess and maintain statements for individual children.

On Amendment No. 31, it may be helpful if I explain that there are certain general principles upon which LEAs will base their decision as to whether they are required to determine the provision to be made for a child. It is implicit in the Bill that certain children will have special educational needs of an order to require the intervention of the LEA—in determining their provision and in monitoring their progress—in order that their particular interests are protected. Conversely, LEAs will decide that they are not required to determine the special educational provision for a child where, after assessment, they judge that his needs can be met in the ordinary school, within the resources normally available to it, and without the formal intervention of the LEA.

Thus LEAs' decisions will be based upon the nature and extent of the provision they make as a matter of course in their ordinary schools for children with special educational needs. These are factors which, particularly at the fringes and in respect of resources required for children with mild disabilities, will vary from authority to authority. Each LEA will have its own set of broad criteria, based on local circumstances, provisions and practices, and it is not possible to prescribe such factors on a national basis. I believe that the general principles are, however, sufficient to enable LEAs to reach their decisions. I hope that the Committee will understand this.

Turning now to Amendment No. 36, again, the provision will depend on a number of factors apart from the policies of the local education authority. For example, the geography of the area and the distribution of population—whether it is a rural or urban area—may determine the extent to which the authority can make special educational provision in ordinary schools; or whether they can maintain special schools of their own, or have to use special schools outside their area because they do not have enough children with special needs to make it practicable to provide for them efficiently in their own schools. It follows that at the margins between deciding whether or not to make a statement, individual authorities will come to different decisions depending on the facilities that are available in their own area.

The main factor in deciding whether to make a statement, however, must be the needs of the child. As I have indicated, the whole tenor of this Bill is to look at the child as an individual, and to avoid categorising and labelling. Authorities will no longer be required to assign children to one of the statutory categories prescribed by regulation. They will no longer be thinking about 10 categories, but about the different needs of their children.

When the first regulations were made under the 1944 Act, an attempt was made to prescribe the teaching methods appropriate to the various categories of handicap. It did not work, and was very soon abandoned. I believe that it would be equally impracticable to try to lay down in regulations the factors to be taken into account in deciding whether to make a statement about each one of many thousands of children. I do, however, accept that guidance will be needed. This is clearly another of the subjects that we shall have to cover in the advice which we issue to local education authorities. However, I think that this would be much better dealt with by advice in a circular and not by regulations.

I hope that my reply will explain the thinking behind this part of the Bill and that the noble Baroness will feel able to withdraw her amendments.

Baroness David

The noble Baroness seems to assume that the authorities will have to have some criteria to go on and that their decisions will depend upon a number of factors. She mentioned the geography, the distribution of populution, and so on. I should have thought that it would be possible to prescribe these by regulations.

I am not altogether satisfied with the noble Baroness's answer. I still think that guidance in a circular will not be quite enough to guide those authorities which are not the good authorities. Therefore I shall look very carefully at what the noble Baroness has said and will possibly come back to this point at Report if I am still not satisfied. For the moment, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 32 not moved.]

9.38 p.m.

Baroness David moved Amendment No. 33: Page 5, line 20, at end insert ("and the parent may appeal to the Secretary of State.").

The noble Baroness said: I see no reason why a parent should have the right of appeal under subsection (5) but not under subsection (8). When a local education authority has decided that it is not required to determine the special educational provision, the parent can appeal. If, however, the local education authority decides not to assess the special educational needs of the child concerned, the parent cannot appeal. It seems to me to be totally illogical that the two subsections should not be treated in the same way. I beg to move.

Baroness Young

This amendment is, I think, based on a misunderstanding. Its effect would be that if a local education authority, after serving notice on a parent, decided not to proceed with an assessment the parent would have the right of appeal to the Secretary of State. If in fact a local education authority decided not to proceed with an assessment, this would normally be because it had been persuaded by the representations of the parents. In that situation it is unrealistic to have a right of appeal for the parent, because the parent would not have wanted the assessment in the first instance. In the rare cases where a local authority decides for some other reason to leave off the assessment, the parents have the right to ask for an assessment under Clause 9. In those circumstances, an appeal to the Secretary of State would be unnecessary. So the point which the noble Baroness is making has been met, either in this part of the Bill or under Clause 9.

Baroness David

I see that possibly the decision not to assess might be because of the representations that the parent had made. So far as Clause 9 is concerned, there is not the absolute right to assessment unless we carry one of our future amendments, so I think I shall leave this for now and see what happens to our amendment to Clause 9, which would make a difference. I beg to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Clause 6 [Assessment of special education needs of children under the age of two]:

9.41 p.m.

Baroness Jeger moved Amendment No. 34: Page 5, line 22, after ("authority") insert ("or family doctor").

The noble Baroness said: I think it may be for the convenience of the Committee if I speak also to Amendment No. 35. Amendment No. 34 may seem an otiose amendment. It deals in Clause 6 with a situation where children under two years of age are involved and it puts a duty on the local education authority to make special provision for children under two. Our amendment seeks to add to the local education authority's opinion, the opinion of the family doctor. I know that legislatively I may be using the wrong phrase and that we should call these marvellous people "general practitioners", but I think "family doctor" is a friendlier term, and anyhow it fits into the context of the Bill better. The Minister will be glad to know that this a probing amendment, because I hope we may have some information on how this clause will work. I referred to it on Second Reading and I am still worried about it because it is a new departure, and I hope the noble Baroness will be able to tell us of plans which are being made to bring this into effect.

We know that under the reorganisation of the National Health Service the school health service and the community services and all the health services were supposed to be brought within the area of the health authority and we hoped that this reorganisation would result in a comprehensive service in which the school health service would be integrated with the other child health services, hospitals, specialist services and general practitioner services. Of this Mrs. Warnock said, on page 278, "This goal has not been achieved". I know it has not been achieved, from personal experience. I know too many family doctors who have been called out in the middle of the night or at weekends to see children who were getting some attention from either the school doctor or the hospital doctor, and often there is a real breakdown in communication.

I am trying to visualise the situation as I know it at ground level. Here is a child under two about which a local education authority has to make a decision. I ask the Minister, how will the local education authority know about these babies? It really will be a new departure if family doctors, who may be well trained, although not perfectly, in communication with community health doctors and school doctors, now find that they have to write a letter to the education authority—or do they have to write a letter to the health authority for the health authority to send on to the education authority? I am very concerned about how the links in this chain are to be made effective.

It is often the family doctor who has the most contact with the children and the parents, and in the context of this Bill we have been trying to think about parents and children very closely together. In my view it is especially important that he should be closely involved, and I know that such is not always the case. The Court Committee went into this in some detail and reported in 1976, so it is not a new question. It may not be through legislation that we are going to get the right co-ordination, but we surely must make it clear to those we are expecting to do this work how they are to do it and in which direction it is to work.

I was very concerned at another observation in the Warnock Report, at page 295, on the question of relations between professionals: The inadequate communication of information, both between and within different professions and between professionals and parents, emerged very clearly from the report of the research project on services for parents of handicapped children under five which was undertaken at the University College of Swansea We are talking about a completely new situation, and I welcome it. I think if we can get disabled children under five, children with any sort of difficulty, brought quickly within the help of other services, that makes all the difference to their start in life.

I know that there are some specialist hospitals which can fit a tiny hearing aid into the ear of a baby a few days old, as soon as the difficulty is discovered, so that the child never is bereft of noise and sound. Things like that which medical science is working on can do marvels for these children. Is the hospital doctor to tell the education authority? Is the family doctor to tell somebody else? I ask these questions in concern and in all seriousness. I put this amendment down really to give the Minister an opportunity to explain, not only to me but to some of my doctor friends who are worried and puzzled about the intentions of this Bill as it affects their work. I beg to move.

Baroness Young

I appreciate that the noble Baroness, Lady Jeger, is moving a probing amendment really to get an explanation of this clause. As the Committee knows, this is a new departure in education, to give a power to local education authorities to make provision for children under the age of two. What the noble Baroness is trying to achieve in her amendment is, I think, an explanation as to how this will work. If the family doctor suggests that a child under five has special educational needs—and I think she is quite right that this will probably be how a parent will first become aware of this—he should be able to alert the local education authority so that they can assess the need. This is in fact already possible under the Bill. It does not require the amendment for the family doctor to do so.

Baroness Jeger

I am anxious to get this right. Is the family doctor to get in direct touch with the education authority and not go through the local area health authority?

Baroness Young

No. What would happen would be that the family doctor would tell the parents of his suspicion that the child has some special needs and the parents would trigger off the mechanism for assessment; they could ask for an assessment. The family doctor—or it might be the health authority; it might come through a health clinic—would say that the child had a special need. The noble Baroness suggested, for example, that the child is deaf and therefore will have a special educational need. In those circumstances it might be quite appropriate for the parents to ask for an assessment and statement because the child will almost certainly have a special educational need. Indeed, the local education authority could so something to help the child although the child is under two.

It could well be that the need might be something quite different about which the local education authority could not do anything with such a young baby, and therefore it could not make a statement. However, the purpose of this clause would be to enable, where appropriate, the mechanism for there to be started an assessment of the child. The local education authority would have the right to determine whether or not the child did become the subject of assessment; they would have the right to determine whether they regarded it to be appropriate. So in effect, under this clause, local education authorities have powers to make a statement of a child's special needs and to maintain the statement as they regard it appropriate. Many local education authorities in fact already make provision for handicapped children under two, particularly for those with a hearing impairment, and they do that by way of peripatetic teaching.

However, it is not always possible for local education authorities to make provision for very young babies, many of whom will only have emerging educational needs and who will be at too early a stage in their development for the local education authority to take any meaningful action. It is, therefore, right that local education authorities have the powers to help where they can. Clause 6 allows them to exercise this flexibility in judging whether to complete and maintain a statement for these very young children, but it does so with the consent of the parents. I hope that I have given a satisfactory explanation of the clause to the noble Baroness.

Baroness Faithfull

I should just like to ask a question. I think that in all the areas where I have worked, the community physician is the link between the hospital, the doctors and the local authority. We have found that this has worked because there is this particular link and each of us has always been informed.

Baroness Jeger

I should just like to say to the noble Baroness, Lady Faithfull, that that is what is supposed to happen. I am talking from some rather harsher practical experience. I appreciate what the Minister has said. I still think there will be a great deal of communication needed with the medical profession and with the area health authorities, many of whom are quite unclear about the impact of the Bill on their work, their status and duties. However, I thank the Minister and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 35 not moved.]

On Question, Whether Clause 6 shall stand part of the Bill?

9.52 p.m.

Baroness David

I should like to say a few words on the Question, That Clause 6 stand part of the Bill, because this is a very important clause, and it is quite new for the education authority to have dealings with children under two. All the evidence to the Special Standing Committee on the Bill stressed the importance of the early identification of handicap and appropriate provision. Warnock said in Chapter 5.28: For all children with physical or sensory disabilities or showing signs of learning or behaviour difficulties, early education is the key to their individual development and the prevention or mitigation of later disturbances". It is very satisfactory that the Government have accepted this argument as indicated by their acceptance of new Clause 10 of the Bill which, of course, deals with the way in which the information gets to the local education authority about the needs of the under-twos. That was an amendment that was moved by members of the All-Party Disablement Group. I think that they are to be congratulated on it because parents do get the information.

The Government are bringing in their own amendment to Clause 6 giving the parents of children under two an absolute right to an assessment. That is something about which we can all be extremely pleased. This should help and go a long way to ensure the proper co-ordination between the statutory authorities which was mentioned on Second Reading and which obviously we are all very anxious should be as good as it possibly can be. Indeed, when we come to a later amendment about the advisory committee, I shall be stressing that point again. But a loophole remains which may result in handicapped children not getting the vital early education that they require. This is a situation where parents do not ask for an assessment, either through benign or deliberate neglect or through ignorance of the appropriate process, and where, although the child has been referred to it, the local education authority does not undertake an assessment. This is why we should prefer to have "shall" rather than "may".

I think that my noble friend Lady Jeger was very sensible to withdraw her amendment at this stage, but it is a matter to which we may have to return at a later stage because this is the one weakness in a clause which otherwise we are extremely pleased to see.

Baroness Young

I thank the noble Baroness very much. I am glad she appreciates that we have made major amendments to meet points that have been raised by the All-Party Disablement Group in another place. As she said, Clause 10 has been written in as a result of that and of course Clause 6 has been extensively amended, I am sure for the better. The Government have gladly accepted these amendments.

Perhaps I may just reiterate the argument, which is really the point that the noble Baroness, Lady Jeger, raised on Amendment No. 34. The reason that we have written in "may" instead of "shall" is because there will be cases where a parent will request an assessment but regrettably the child is so handicapped that it is not suitable to make a statement for that child under the age of two. That is why it is not an absolute duty; because there is no point in conferring a duty which in that case, very sadly, would not have a purpose. That is why it is drafted as it is. But the noble Baroness may like to look at this on the record and consider it. At any rate, I am glad that she thinks that we have managed to improve the Bill, as I believe we have, as a result of accepting amendments in another place.

Baroness David

I am very grateful to the noble Baroness, Lady Young, for this explanation. I shall, of course, look at what has been said.

Clause 6 agreed to.

Clause 7 [Statement of child's special educational needs]:

[Amendment No. 36 not moved.]

9.56 p.m.

Baroness Jeger moved Amendment No. 37: Page 6, line 2, after ("section") insert ("or section 6").

The noble Baroness said: I beg to move, very shortly, Amendment No. 37. I was a little puzzled to find that in this clause, where the statement of a child with special education needs is referred to, the under-two's, about whom we have been talking under Clause 6, are not included. The purpose of this amendment is only to suggest that where the local education authority is maintaining a statement under this clause in respect of a child, we should include Clause 6 as well, so that the under-two's are brought into Clause 7. I beg to move.

Baroness Young

Here again, I think that there is a misunderstanding. The purpose of this amendment would place local education authorities under a duty to make special educational provision included in any statement they made in respect of a child aged under two. The argument that I advanced on the preceding amendment—namely, that local education authorities must have a flexibility to decide whether or not this is appropriate—applies in this case as well.

I think that there has been a misunderstanding about what an authority can effectively do with all handicapped children. Authorities will have the right to make an assessment if they believe this to be appropriate, and to make a statement, but not if they regard it as inappropriate. The same argument applies in Amendment No. 37 as applied in Amendment No. 35.

Baroness Jeger

I thank the noble Baroness and I shall read tomorrow—when I am rather more wide awake—what she has said. With that reservation, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 38 not moved.]

Baroness Darcy (de Knayth) moved Amendment No. 39: Page 6, line 12, leave out ("15") and insert ("29").

The noble Baroness said: I beg to move Amendment No. 39. When a parent has been served with a copy of a proposed statement, under subsection (3) of this clause he has only 15 days in which to make representations to the local authority about the content of that proposed statement. I submit that 15 days is really not long enough. We all know how long the post can take, or the arrival of the statement could coincide with the parent's having 'flu or being on holiday. I see that Amendment No. 40 in the name of the Earl of Radnor gives the parents one more day than the amendment now before your Lordships' Committee, so perhaps the noble Earl would like to come in on this discussion. In its comments on the Bill the BMA also said that the time allowed was far too short.

The Earl of Radnor

I should like to support this amendment. I do not know why I picked on 30 days. I now realise that 29 days is one day more than four weeks. I should hate to use any strong language when speaking to this and will only say that in these circumstances 15 days is almost derisory. To start with, as the noble Baroness, Lady Darcy (de Knayth), has said, the post is very inadequate and one can never be sure at what point something is served upon a person when it is sent by post. A period of 15 days is also less than the average holiday, and the person to whom such a notice might be sent might be away and would return to find it on his doormat.

When this opportunity to make representations about a statement is given, there is a strong possibility that the parents concerned will want to seek an outside opinion. With educational difficulties, this may concern an educationalist, a psychologist and a medical person. I feel that it would be absolutely impossible to make appointments and get three such people together, in combination or one after another, and then to collate their answers and make a sensible presentation within the time allowed. I am very strongly in support of this amendment. People to whom I have talked have said that 29 days is far too short a period, but at least 29 days are better than 15; 15 days makes matters quite impossible.

Baroness Young

Throughout the Bill we have tried to strike a balance between what is a reasonable time in which parents can place information before local education authorities and what becomes an unreasonable length of time when one considers that the child might not be receiving the education that it ought to be receiving during the period of the various procedures which have to take place. I hope that we have struck the right balance. One has to remember that before the point is reached where there is a draft statement the parent will have been involved throughout the assessment procedures, and the contents of the statement will not come to him as something completely new which he has not had an opportunity to think about before. What we are really talking about here is the actual period during which the parent has a chance to read the draft statement and make any further representations that he may want to make. No local authority will take action on the statement when the parent has said that he is seeking a second opinion on some element of the assessment. And at the end of the day, the parent still has the right to take his case to the local appeal committee.

Conversely, I believe there is a danger that if the period of time is too long, it would sadly give the parent an opportunity to use the delay to prevent the provision of appropriate education to meet the child's needs taking place at all. We must be quite realistic and recognise that although a major theme of the Bill is the involvement of the parents—for we do accept that most parents are concerned and caring parents—unfortunately there will always be the occasional parent who may not want to have what the local authority sees as being the best provision and who may wish to delay this for some reason or another. Therefore, we have tried to strike a balance between what is reasonable from the point of view of the parent and what is important from the point of view of the child.

Baroness Darcy (de Knayth)

I thank the Minister for her reply. Could she say whether, when a copy is served on you, it is when it is delivered or when it is posted?

Baroness Young

I am not sure that I could give an off-the-cuff answer to that. What might be helpful would be if I wrote to the noble Baroness on that point. I think we are getting into a great deal of detail and I cannot answer that question. Before I do answer it, I hope that she will consider the whole long period of assessment which precedes these dates. These are not just beyond it; it precedes them probably by a matter of weeks, so that by the time the parents receive the draft statement they have had full consultations, they are aware of what is going on, and they have an opportunity to comment. What is important is that if the parents are really dissatisfied they can go to appeal. One would want to avoid doing that because it is far better that there should be discussion, and if the parents should want a second opinion they can ask for it. I think that in those circumstances this is reasonable. But on the particular point I think I had better write to the noble Baroness.

Baroness David

There has clearly been a great deal of anxiety on the part of a vast number of people about this 15-day period. I wonder whether the Minister would consider a compromise of 21 days if she could not accept 29? If you are going to wait to go to appeal, that is going to take a great deal longer than an extra couple of weeks. I hope that she would pay attention to the anxiety that has been expressed by, I think, all the different societies and by a great many people in this House, both at Second Reading and in Committee today.

Baroness Young

Yes, I will consider this point, and I will certainly consider it before the next stage of the Bill. I should not like to give a promise that I can meet it, because there is a real point on the other side that one must not let too much time elapse. I think it would be unreasonable not to look at it, and I will certainly give that assurance.

Baroness Darcy (de Knayth)

I am delighted, because the noble Baroness, Lady David, took the words out of my mouth. I was going to suggest that the Minister offered to compromise and come down to 21 days. I am not nit-picking when I ask whether "serve" means delivered or posted, because if the post takes seven days it is half the period of 15 days, whereas with 21 days it would give us a little leeway. I am grateful to the Minister for saying that she will look into the matter, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 40 not moved.]

10.9 p.m.

Baroness David moved Amendment No. 41: Page 6, line 21, at end insert ("and provide a copy of the statement if made. They shall also inform the parent in writing of their right of appeal under the provisions of section 8 of this Act.").

The noble Baroness said: This seeks to put right something that I am bold enough to say might perhaps be a mistake in the Bill. It asks that a copy of the statement should be made available and that the authority should also inform the parents in writing of their right of appeal under the provisions of Clause 8 of this Bill. It seems odd that at present there is no duty to provide a copy of the statement but only the proposed statement, and no duty to inform parents of their right of appeal at this stage. I should very much like to know the reason for this because it seems to me extremely odd. I beg to move.

Baroness Young

Perhaps I should explain that while it is not specifically set out in the Bill that parents will be given a copy of the statement, once made, under Clause 7, and informed of their right of appeal under Clause 8, it is implicit in these provisions that those steps must take place. Parents will under Clause 7(3) see a copy of the proposed statement and be notified in writing of the LEA's decision in the light of any representations they may make. They will thus be aware of the final contents of the statement, and I am sure the LEA would find it appropriate to signify their decision by making a copy of the statement available to the parents. Whatever practise LEAs adopt, parents will be in no doubt about the exact contents of a child's statement.

Under Clause 8 the LEA must make arrangements for enabling the parent of a child for whom they maintain a statement under Clause 7 to appeal, and therefore it would be very odd if, in notifying parents of their decision to make a statement, the LEA did not ensure that they were specifically informed of their right of appeal. However, I am prepared to look at the amendment in principle—I could not accept it because it is technically faulty—and in view of the fact that there might appear to be some doubt about the matter, I shall be happy to bring forward an amendment, having looked at the matter, on Report if I can find one that would be suitable.

Baroness David

I am all smiles at that reply. That is the first bit of give we have had today, so I thank the Minister very much indeed and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 42 not moved.]

Clause 7 agreed to.

Clause 8 [Appeals against statements]:

[Amendment No. 43 not moved.]

10.12 p.m.

Baroness David moved Amendment No. 44:

Page 7, line 17, leave out paragraph (b) and insert— ("(b) uphold the appeal"). The noble Baroness said: I am sorry that we must start on what is one of the major areas in the Bill at this late hour.

Lord Denham


Baroness David

If, by that, the Government Chief Whip thinks I have not been fast, he is very much mistaken. I have spoken as briefly as I possibly could and I do not think I have used two words when one would do. I have done my very best to make progress with the Bill, so it was unfair of the noble Lord to make such a remark.

Lord Denham

Perhaps the noble Baroness will allow me to intervene to apologise; it was an involuntary exclamation.

Baroness David

As I was saying, I am sorry that we have reached this major part of the Bill at this hour because it is a matter about which people feel very strongly and needs a major debate, so I shall not hurry over this aspect. I shall be speaking to a number of amendments at the same time, including Manuscript Amendment No. 44A, to which the Chairman may wish to make reference.

The Deputy Chairman (Lord Airedale)

There is a Manuscript Amendment No. 44A standing in the name of the noble Baroness which reads as follows: Page 7, line 20, leave out subsection (5)". But the Question before the Committee is that Amendment No. 44 be agreed to.

Baroness David

In speaking to No. 44, I shall, with permission, speak at the same time to the following: Manuscript Amendments No. 44A, 45 and 46 and I shall make reference to Amendment No. 85 to Schedule 3. These all relate to the subject of appeals. Taken together, they would make a decision of the appeals committee binding on the LEA, in line with Section 7(5) of the Education Act 1980, but would at the same time retain the right of parents of children with special educational needs to appeal to the Secretary of State. It would mean a little bit of positive discrimination for those children with special educational needs, and it is a bit of positive discrimination which I should like to get into the Bill.

The amendment to Schedule 3 gives the appeals committee, when considering cases of special educational need, the power to co-opt on to the committee people with appropriate expertise, if there is not already such a person on the committee; or indeed the appeals committee could in the first place be constituted so as to have on it a person with the necessary knowledge. I think perhaps I should make an apology here because I am fairly sure that the amendment to Schedule 3 is not perfectly drafted, and indeed it might have been better as an amendment to Clause 8(2). But no doubt the noble Lord, Lord Renton, will put me right about where it should be and how it should be worded.

When similar amendments were moved in Committee in the other place the Government would not accept them, for the following reasons. First, the matters that the appeals committee would be considering in relation to children with special educational needs were different from those relating to ordinary children. In the case of the 1980 Act the appeals committee would be judging a question of choice between two schools, either of which could broadly provide an education suitable to the age, ability and aptitude of the child because of the course followed, the type of discipline, the question of single sex or not, and other such questions. Indeed, whether the school should be single sex or mixed might be the only difference. But for a child to be the subject of a statement, the important consideration would be to ensure that he is placed somewhere with suitable special educational provision available to him; and that is a specific responsibility of the local education authority under Clause 7(2) of the Bill.

The second point was that members of the appeals committee might not have the expertise to judge the type of issues involved in deciding on special educational provision. The third reason was that parents would be present at consultations during all stages of assessment, and it was expected that cases going to the appeals committee would be rare. The Government felt that they had struck the right balance between the rights and responsibilities of parents and those of the LEA, in particular since parents were given the additional right of appeal to the Secretary of State.

I feel that the Government are mistaken on several counts. First, there is here another example of discrimination against handicapped children and their parents. Secondly, the function of the appeals committee must be stated. It is to act like a tribunal, to weigh up and assess all the evidence. If the appeals committee operates properly, it should have access to all the reports on which the assessment and statements have been made; and if my amendment to Schedule 3 is accepted, if the appeals committee felt that it needed further expertise and advice, it would have the power to co-opt appropriate persons, or to have them on the committee in the first place.

It might be added that if the local authority has a reasonable case, it ought to be able to put it to the appeals committee whether or not the appeals committee is expert; and we hope that the members of the appeals committee will be sensible people who will be able to take in the details of a case. The local authority ought to be able to put the case in a form that the appeals committee can understand. If the LEA does not have the skill to put its case in a form that laymen can understand, perhaps it ought not to be accepted. Furthermore, how many experts on special education will the LEA committee have? The decision will be remitted to the committee if the Bill goes through as it is. I feel it is important to retain the right of appeal to the Secretary of State, because the Government are correct in saying that the implication of the decision is far greater for a child with special educational needs than for a child in an ordinary school. It is important to retain that extra safeguard.

I feel very strongly about this question. It is enormously important that these children should be treated in exactly the same way. The parents have every right to expect that, and if the entire arrangements have gone well, it should be possible to explain the decision to them in such a way that they would accept that it was right. I feel that here there should be a last right to the same kind of treatment as is given to children who do not have statements. I beg to move.

Baroness Darcy (de Knayth)

I should like to say a very few words in support of the amendment. This is an important question. I believe that many organisations concerned with disabled people consider it wrong that the appeals committees are given only advisory powers. I would back up what the noble Baroness, Lady David, said; namely, that we must also leave the right of appeal to the Secretary of State as an extra safeguard.

Baroness Young

As the noble Baroness has said, this is a matter which was discussed at very considerable length in another place, and it is a matter to which we have given a great deal of thought—the whole question of the appeal procedures, and whether the appeal procedures can be precisely the same as they are for other children under the 1980 Education Act. I will not go over the arguments, which the noble Baroness summarised, that were used in another place, because I think this would not be necessary at this late hour; but I might perhaps take her through some of the thinking of the Government on this matter and the kind of problems that arose when we were considering drafting the legislation.

One of the suggestions that was made—because I think the noble Baroness will accept, as well as the noble Baroness, Lady Darcy, that the decisions that the appeal committee will be considering will not be precisely the same as they will be for other children, because quite specifically we are now talking about children with statements—was that one option open to us was to have special experts joining the appeal committee in order to make a decision about these cases. But, of course, the disadvantage of that particular procedure is the one that the noble Baroness has identified in what we have now, in that it discriminates against (or perhaps one might say in favour of, whichever way one looks at it) children with statements. At any rate, it is not the same procedure.

As the noble Baroness, Lady Darcy (de Knayth), has just said, what we have done is to say that the decision of the appeal committee will not be binding, but because it is not binding the parent has the alternative to go beyond the appeal committee direct to the Secretary of State. This is, in a sense, positive discrimination, because this is a right which, as it were, ordinary parents with ordinary children will not have under the other appeal procedure. It is therefore very difficult to produce a system which will be precisely the same.

What we have tried to do is a fulfilment, I may say, of an assurance which I gave to the Committee on the 1980 Education Bill, when we were discussing this point, that when we came to legislate for handicapped children we would make the provisions as nearly similar as possible to those we had for ordinary children under the 1980 Act. That is why the Bill has been drawn in this way. I think it is fair. We have the extra provision of a further right of appeal to the Secretary of State; and what I think is very important in this case, as indeed in other cases, is that the right to go to appeal is a last resort and not a first resort. I hope particularly in this case it will be seen as a last resort, because the very lengthy procedures leading up to the statement, with the full consultation with parents, should make an appeal less likely.

I am afraid I cannot accept this series of amendments. We do not think it would be appropriate in these cases to allow the appeal committee to uphold the parents' appeal. The manuscript amendment is obviously a consequential one upon that, because clearly a subsection (5) would become necessary were Amendment No. 44 to be carried. We therefore think that we have the balance right in these particular, very difficult cases. As I say, I hope the appeal committee procedure will be used very sparingly, and in these cases it will be used only after the fullest consultation with the parents at all other stages of the procedures.

Baroness David

I am afraid I am not convinced by the Minister's reply. Let us have a look at the composition of the appeal committee. Under the 1980 Act it can be made up of seven, five or three people. I hope it would never have more than five, because that would seem to me quite enough for parents to have to face when there are also bound to be one or two officers in the room. But suppose you make up your appeal committee of seven people. You can certainly then have a choice according to the cases they are going to have to deal with. You could afford to have one or two people with real expertise in this matter, I should have thought, and therefore they could be capable of coming to a decision, with that decision being as binding as in the case of children with no statement. The Minister says they have this right of going to the Secretary of State, but I wonder in how many cases the Secretary of State changes a decision. The Secretary of State is bound to go to the local authority for the information that it works on. It sounds all right, but I wonder how much of a bonus it is at the end of the day. I do not think there will be any point in dividing the Committee at this hour of night when a great many people have gone home; but I am not satisfied about this. I shall read every word that has been written and I shall come back probably with similar, if not the same, amendments at Report stage. For the moment I shall withdraw the amendment.

Amendment, by leave, withdrawn.

[Manuscript Amendment No. 44A not moved.]

[Amendments Nos. 45 and 46 not moved.]

Clause 8 agreed to.

Clause 9 [Requests for assessments]:

10.28 p.m.

Baroness Darcy (de Knayth) moved Amendment No. 47: Page 8, line 5, leave out ("unless it is in their opinion unreasonable").

The noble Baroness said: I beg to move Amendment No. 47 and to speak to Amendment No. 48. Both are concerned with strengthening the position of parents in relation to the local authority when parents seek assessments of their children. In subsection (1), the words, unless it is in their opinion unreasonable", make it virtually impossible for the parents to get their child assessed if the local authority are unwilling to do so. Parents are often the first people to realise that their child has a learning difficulty. In a bad local authority area some parents have difficulty in getting from the local education authority the help that they know their child needs. In future, a bad local authority might make life difficult for these parents by refusing to assess their children. Parents who are worried and who believe their child has a learning difficulty should be guaranteed a first assessment for their child. Local authorities should not be allowed to escape this by using the excuse that they think such an assessment would be unreasonable. It could be argued that they are in no position to judge whether this is reasonable or not until after the assessment is made.

In subsection (2), the words, unless they are satisfied that an assessment would be inappropriate", allow the local education authority to do virtually as they please, and parents are thus made powerless in arguing against a local education authority that has refused their request for a reassessment. Six months is a long time in the life of a developing child. As this subsection stands at present, they may have to wait for six months, only to be told that their request has been turned down. It is not stated that any specific reason must be given. I should like to ask the Minister a question on another point. Can she clarify what a review of a statement will entail? This is in Schedule 1, Part II, paragraph 5. I beg to move.

The Earl of Radnor

I should like briefly to support this amendment simply on the count that the clause seems to give something with one hand and to take it away with the other. The right of asking for an assessment, as far as I can see, does not directly exist at all. It is a semblance. I am sure that my noble friend will say that the authorities are reasonable people and that it will not work like that. I am sure that at most times she will be right; but I believe that it is wrong that this phrase at the end of each clause should be there which takes away this right to request an assessment. For that reason, I support the amendment.

Baroness Jeger

I should like to draw attention to the fact again that when the noble Lord, Lord Banks, used the word "reasonable" in an amendment he was told that it was inappropriate because people could not quantify "reasonable", so now I have to ask the Minister how she can quantify "unreasonable"? This seems to be leaving the door very wide open to subjective judgments however much they may be made in good faith. What is one man's reason is another man's nonsense. I strongly support the amendment. If we can just finish the evening on a happy note of agreement in this connection, we shall not have done a bad day's work.

Baroness Young

I am tempted to say that I do not feel that I have been unreasonable today. The Govern ment have certainly tried to meet the major concerns that have been expressed to us either in this Committee or in another place.

The duty on the local education authority in Clause 9 is subject to safeguards. The amendment would remove the words, unless it is in their opinion unreasonable", which qualify the LEA's duty to carry out an assessment of a child who is not subject to a statement. The other amendment would remove the words, unless they are satisfied that an assessment would be inappropriate", which apply to a request for a reassessment.

Subsection (1) of Clause 9 is concerned with requests by parents for assessment of children for whom no statement is maintained. As it stands, it refers both to a first such request and to any subsequent request. I am sure that we would all acknowledge that, because of their close and continuous contact with that child, parents are often the first to notice emerging problems. This is a point which the All-Party Disablement Group made in their evidence to the committee in another place. If we consider the case of a parent who seeks for the first time an assessment for his child and the child is not already known to the LEA and their professional advisers, it is very difficult to envisage circumstances where the LEA could judge that request unreasonable. In this situation, where there is no existing specialist information about the child, there could be no grounds upon which the LEA would reasonably refuse to comply with that request. They would be in breach of their duty under this subsection and under Clause 4 if they were, in ignorance of the child's needs, to turn the parent away.

The position is different where a child is known to the LEA and where his needs have been previously assessed but not judged to be of an order to require the LEA to make a statement for him. In such a case, depending on how long it had been since the previous assessment, and whether there was any evidence of a change in circumstances, a local education authority might quite properly decide that the request for another assessment was unreasonable.

We realise that children's needs may change over time, if their condition deteriorates, or a child may suffer an illness or accident. Parents are anxious about these changes, and we would expect LEAs to pay heed to those anxieties and comply with a request for assessment where there was any cause to suspect that a child's needs might have changed. But we must allow LEAs some discretion to make a considered decision about the wise use of resources in the case of unduly frequent requests for assessment—for example, where a recent assessment has taken place but no serious difficulties have been revealed. What is considered unduly frequent might well vary depending on the age and stage of development of the child; but, again, decisions would rest upon whether there was any cause for doubt about the child's potential or developing needs.

In Clause 9(2) the parental request for assessment will be in respect of a child who is the subject of a statement but similar considerations will apply. We would normally expect LEAs to comply with a parental request for assessment if a reasonable time had elapsed since the last assessment, but we must allow LEAs discretion to refuse such a request where a more appropriate course of action is indicated. It may be that consultation with the child's school and review of the provision will be sufficient to relieve parental anxieties, or that an appointment for parent and child with the educational psychologist who previously examined the child can be arranged in order to sort out particular worries. Perhaps the parent's request for assessment is a cry for help, indicating increasing strain upon the family as the child grows older, and perhaps a need for social work support. I hope I have indicated our belief that LEAs should be allowed some discretion in these matters.

At the end of her remarks, the noble Baroness, Lady Darcy (de Knayth), asked me a question about Schedule 1. Perhaps I may say that a review of the statement under paragraph 5 of Schedule 1 would basically consist of checking the progress of the child and deciding whether the provision being made for the child was still appropriate to his needs. If the indications were that all was well, the review might be made in a report from the school to the LEA. If, however, there seemed to be a need for a deeper review, the LEA would look at the adequacy of provision or, if it seemed necessary, the assessment of needs. They could, if it seemed necessary, arrange for a new assessment and a revision of the statement.

If I may just return to the main principle of the amendment moved by the noble Baroness, I hope that she will accept that some discretion on the part of the local education authority is appropriate and right, and that she will withdraw her amendment, therefore.

Baroness David

It seems to me that yet again the balance is being put against the parent. This has happened all through the Bill and in amendment after amendment we have tried to get the balance slightly the other way. I should have thought that in this case it was reasonable to ask for, unless it is in their opinion unreasonable". to be deleted.

The Minister accepts that it is often parents who discover handicaps in their children, and it was put down by Warnock that even when parents express anxieties and suspicions about their child's development, these are too often disregarded by professionals. I should have thought that the danger of the vexatious parent was really very, very small, compared with the number of disappointments and perhaps the number of wrong decisions which might be made and the children who might be missed because of the assessment not being made.

Of course the same goes for Clause 9(2). I would ask the Minister to consider giving way. We had thought of putting down an amendment to reduce six months to three—it has been reduced from twelve, but six months is a long time in the development of a child. They move very fast when they are small, and changes can happen very rapidly; so I would have thought this was something where really the Government might have been a little kinder and switched towards the parents, as they have not done really in anything at all today. We have hardly had any movement whatsoever on this Bill.

Baroness Young

I really cannot accept that statement. We have debated this principle as to whether or not parents would have an absolute right to demand an assessment of their child when in Clause 6 it was a question of children under the age of two. The noble Baroness herself will know that this is the first time in law that we have given the power to education authorities to make educational provision for children under the age of two and a right for parents to request an assessment and, if the authority think it suitable, to make a statement and to make educational provision for such a child under the age of two. To say that in doing this we are tilting the Bill against the parents seems to me to be unfair, because here we are giving the parent a new right and we are conferring a new power on local authorities by way of their provision. Again, we are making it possible in Clause 9 for parents who wish the authority to make an assessment of their child's educational needs to have the opportunity for this to be done. We have qualified it only because, as the noble Baroness has said, there will inevitably—I regret to say—be some vexatious parents and it would be quite unsuitable to put a duty on a local education authority to make a statement simply because a parent said so.

In most cases I have no doubt that the local education authority will make a statement, because a parent will be aware that there is something that is amiss. But it may not in all cases; therefore we believe that it would not be right to confer an absolute duty in the Bill at this point. I should much regret it if the Committee felt that anything that we have put into this Bill, or anything that I have said today, could be taken as not conferring new rights on parents, because one of the principles behind this Bill has been parental involvement, and I believe that Clause 9 makes that clear.

Baroness Jeger

May I intervene for a moment? I noticed with interest that the noble Baroness used the word "vexatious" in regard to requests from some parents on rare occasions. Maybe she could look again at the use of the word "unreasonable" in the clause, because that seems to me to be a point of difference over which we ought to be able to meet one another. I do not think it is at all wrong for parents in this situation to be unreasonable, or to seem unreasonable, because the stresses and anxieties can often make parents, and the children themselves, seem to behave unreasonably to those who have the administration and the bureaucracy to deal with. I have never thought that being unreasonable was a sin. It often happens in this House and it is not held against us. So I am wondering whether, in spite of the praise that has been given, the noble Baroness could look again at this wording and see whether there is some way in which she could meet our anxieties.

Baroness Young

I have not the slightest doubt that if a parent requests the local education authority for an assessment, and there is evidence that the child has learning difficulties or has some disability, the authority will make that assessment and, if it is appropriate, make a statement on it. That is not being unreasonable where there is a clear case. I am quite certain that the noble Baroness can think of examples—indeed, we all can—of cases where a parent, perhaps from over- anxiety, might ask for an assessment, when it is quite clear, because the child will be at school, that there is no evidence that the child has a learning difficulty. In such cases, therefore, the request to make a statement becomes an unreasonable one. All that we are saying in this Bill is that the local education authority must have discretion to determine in these cases. I do not doubt that if there is a real case the need will be met, but I think it would be wrong to make it an absolute duty in this clause.

Lord Renwick

I hesitate to start on this subject at this late hour, but my noble friend the Minister has made a point about parents' rights. I feel that I must support this amendment, as I supported Amendment No. 29 on confidentiality, not purely on the grounds of parents' rights, but purely on the grounds that there seems to me some hesitation by my noble friend in making local education authorities totally accountable for the service that they provide for these children—and handicapped children at that. I have not heard the word "accountability" mentioned before this evening—I may have missed it—but I feel that these are two very important amendments which we are now speaking to, as indeed was Amendment No. 29, and I hope that the Minister will give this due consideration.

Baroness Young

If I may just answer the point of my noble friend Lord Renwick, the local education authority has a duty under the Education Acts to provide for the education of all the children under its authority. There will be no question about what I might describe as ordinary children going to an ordinary school. What we are talking about here is a duty to make a statement, because a parent has requested it. All I am saying is that although the authority will have a duty to provide an education for it, it may not necessarily have an absolute duty to make an assessment of its needs because it may not believe that it has a special educational need. There is therefore a difference between that duty to provide an assessment and an absolute duty to provide for its education.

Baroness Darcy (de Knayth)

The noble Baroness the Minister has not really satisfied me. There is quite a lot of support for this amendment but I will take it away and have a look at it. Too much power is in the hands of the local authority. I am wondering whether or not a little less could be struck out so that the local education authority would not be the judge. Perhaps the words "in their opinion" and "they are satisfied that" could be struck out. However, I will think about it. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 48 not moved.]

Clause 9 agreed to.

Lord Denham

The general feeling of the Committee seems to be that this may be an appropriate time to stop. However, I am a little disappointed with the progress we have made today. This is a very important Bill about which I know many noble Lords feel very strongly indeed. I have no cause for complaint with the progress since about eight o'clock onwards, but the whole of the afternoon was spent upon discussing only 14 amendments. Originally we had hoped to get this Bill through its Committee stage in one day. We then came to the conclusion that it would take a little longer. It happens very often in this House that possibly too much consideration is given to certain amendments during the afternoon and that possibly too little consideration is given to later amendments. This is something which we might consider. When we come to the second half of this Bill, I hope we can consider it a little more expeditiously and possibly a little more evenly.

Baroness Llewelyn-Davies of Hastoe

We entirely understand the feelings of the Chief Whip. Of course it is his job to get the business through. However, he must also understand the very deep feelings that there are about this particular subject. When he said that we spent a long time on the first 14 amendments this afternoon I think he must have forgotten that we had a long Government statement then, and a very important one, too. I do not think that we ought to be lectured about going into something deeply at the beginning of the afternoon when part of the time was taken up with a statement. Everybody who has spoken has done so with deep seriousness. There has been no suggestion of wasting time or not dealing with the matter in depth. I think the Chief Whip's lecture was very slightly misplaced.

Lord Denham

I would never dare to lecture the noble Baroness, nor indeed the House, because it would be counter-productive. All I was doing was making suggestions which I hope will be taken in the spirit in which they were meant. With that, and in the hope that we can finish this very important Bill, as I say expeditiously and evenly, when we come to consider it again, I beg to move that the House do now resume.

Moved accordingly and, on Question, Motion agreed to.

House resumed.