HL Deb 17 July 1981 vol 422 cc1491-556

11.24 a.m.

The Minister of State, Department of Education and Science (Baroness Young)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Baroness Young.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Baroness David moved Amendment No. 49:

After Clause 9, insert the following new clause:

("Provision for children 16 to 19.

("—(1) The local education authority shall have a duty to inform itself of—

  1. (a) all persons between 16 and 19 years whose special education needs are identified at that time, but about whom no statement has previously been made;
  2. (b) all persons aged between 16 and 19 years about whom a statement has previously been made under section 7
and shall provide an award in respect of such persons attendance at such institutions of full or part-time education as shall be recommended.

(2) An authority shall not be relieved of the duty to make such awards by paragraphs 2 to 4 of the Education (Mandatory Awards) Regulations 1980 where statements have been made about their special educational needs.").

The noble Baroness said: In speaking to Amendment No. 49, I should also like to speak to Amendments Nos. 50, 52, 53 and 69A. These amendments all have to do with young people between the ages of 16 and 19; that is, post-compulsory school age. The Minister said at Second Reading on 23rd June (at col. 979 of Hansard): The Government have acknowledged that it is not possible to extend any of the provisions in the Bill to the further education sector until the whole legal basis for the provision of further education has been reviewed and decisions taken on any necessary legislative reforms". Even so, I am not happy that there is no provision in the Bill and I should like to remedy that. These new clauses are probing amendments to raise the issue.

Post-sixteen education or training, one of the priority areas or Warnock, has been completely excluded from the Bill. There is considerable concern among voluntary organisations about handicapped school-leavers, particularly at a time of high unemployment. Often owing to delayed intellectual development, missing out on schooling because of medical treatment or the development of a handicap, education is needed beyond 16 but not necessarily in a school. At present, the LEA does not have a duty to provide for SEN children except where the young person is registered as a pupil of the school. There is a great deal of concern about handicapped people being discharged from special schools and ordinary schools with no provision then being made or being sent to adult training centres and day centres where there is no educational training. Those of us with experience of educational sub-normal schools, both (M) and (S) know that the children slip back in the holidays when they are missing their educational provision if the parents are unable to keep it up, and that is often very difficult for them to do.

Honourable members in the other place were informed by the Government that LEAs have powers to make teachers available for adult training centres under Section 41 of the 1944 Act, and powers to make educational provision at ATCs under either the National Health Service Act 1977 or under the Local Authorities (Goods and Services) Act 1970. However, in many areas such educational provision is not being provided often because of lack of co-operation between the Social Services Department and the Education Department and we hope that the Government will accept the recommendation in the consultative document The Legal Basis for Further Education which would turn this power into a duty, and in the meantime pass our Amendment No. 51.

I am pleased to see that the consultative document in paragraph 19 says that it should be the duty of an LEA to ensure suitable provision for over 16-year-olds in accordance with the aptitude, needs and preferences of these young people in school, in institutes of further education or to secure suitable provision elsewhere; that is, in another LEA or otherwise.

I should like to quote from a small passage from The Legal Basis for Further Education. Page 13, paragraph 19, says: As far as is possible, there should be no statutory bias towards one form of provision or another. in order that the most effective arrangements can be made in any particular circumstances; and, above all, any uncertainty in the present law (see paragraph 3 above) which might seem to oblige an authority to make provision in schools rather than further education should be removed. This implies that, in relation to this age group, any new further education legislation should be deliberately constructed to be on all fours with the requirements of post-compulsory schooling so that the legal provisions are, and can be seen to be, even-handed and complementary". This is why in my Amendment No. 52 subsection 6(a) I refer to school or further education establishment. While not wishing to pre-empt the consultative process, there are several issues relating to special educational needs brought up by the document which may give rise to concern. For example, the consultative document recommends that there be no provision for making formal statements for people in further education (as there is in the Bill for school pupils) but: where a person who has been the subject of a statement while at school, the LEA should be under a duty to have regard to the need expressed in it, and, if it is not the same LEA that made the statement, have a right to see the latest statement made". That is in paragraph 13.1 of the annex. if the statement is discontinued, what means will there be of ensuring that appropriate education is actually provided? This of course also raises the issues of discontinuing and destroying statements.

Secondly, the document recommends that if there is no previous statement the student or his parents should have a right to ask for an assessment of the student's special educational needs before further education is arranged for him, and the LEA should be under a duty to carry it out unless the request is unreasonable. It is for consideration whether the student should be given a specific right of appeal to the Secretary of State if his request is declined.

Again there do not seem to be adequate safeguards here. Parents and the young person should have an absolute right of assessment and appeal. I should also like to see more acknowledgment of the right of the young person to have his or her views taken into account, as provided for in Clause 4 of the Education (Scotland) Bill. That is provided for in my Amendment No. 52, which is taken very largely from the Scottish Bill.

Thirdly, the issue of mandatory grants for young people with special educational needs needs to be thoroughly discussed. With the present cuts in expenditure, disabled students are just not getting on to the courses and receiving the further education and training they require if they are to have any possibility of employment. The legal basis document, 1 am glad to say, recommends that no fees should be charged for those in full-time or part-time further education, beginning courses up to their 19th birthday. It is in my view a wicked anomaly that they ever have been charged there, when they are not in schools. My Amendment No. 49 covers this point and also covers those who might need a grant for home tuition, for correspondence courses or for the Open University.

To sum up, we want a compulsory appraisal as in the Scottish Bill—Amendment No. 52. We want young people to be properly advised in good time about what educational training they should have after the age of 16 following the end of compulsory schooling, whether in school or a FE establishment. We want the young person to be a party to any decision made if he is capable of making such a decision. This applies to the assessment and making of statements as well as educational provision. A strong argument in support of this is the existing law under the Family Law Reform Act 1969, Section 8, which provides for minors who have attained the age of 16 being capable of giving effective consent to medical treatment. We want there to be a possibility of maintaining a statement.

As I have said, these are probing amendments and it would be necessary, if these go into the Bill eventually, for there to be a definition of "young person". That is provided for in Clause 20—Amendment No. 69A. There would have to be consequential amendments to Clauses 5 and 8. Those were printed in the Marshalled List earlier but I did not move them on the earlier Committee day because I wanted the main debate to be on these new clauses. I beg to move.

Lord Renton

I should like to support the noble Baroness in this amendment and in the series of amendments she has moved. She has touched upon a very important point indeed. May I say, thanks to the initiative of some Oxfordshire parents who belong to the National Society for the Mentally Handicapped, who threatened to sue the Oxford Education Authority for failing to provide education for young people between 16 and 19, that the right to their having such education was brought to the forefront. I would say, in tribute to the Secretary of State, that he supported those parents at once as soon as the point was brought to his notice, and I should like to express our gratitude to him for that. But it is not quite enough, in the context of this Bill, for that right to be acknowledged under the Education Act 1944 and then to leave the rest to chance.

The noble Baroness has put forward a procedure which does not leave the matter to chance but ensures not only that education is provided when there is a right to it but that those for whom it should be provided are brought to the attention of the local education authority, so the thing is properly buttoned up. I have often felt that we do wrong in going into too much detail in our legislation, but there are times when it seems to me that it is unavoidable at least to write in enough to establish people's rights and to ensure that public authorities perform their duties. Therefore, without committing myself to the drafting put forward by the noble Baroness, I should like to support her.

While mentioning drafting, there is one very awkward point which must be dealt with; because if we turn to Clause 20 on page 13, towards the bottom of the page we find in the definition of"child"—and the noble Baroness touched on this point—what could turn out to be a very frustrating provision which completely alters the law as it stands under the Education Act 1944. It could alter the law and its application for cases of this sort. It reads as follows: … 'child' includes any person who has not attained the age of 19 years"— So far so good, but then we have these words— and is registered as a pupil at a school". If those words are kept in the Bill, the amendments of the noble Baroness could have very little effect.

Baroness David

Will the noble Lord allow me to intervene? I do not know whether he realises what my Amendment No. 69A says, which would go into Clause 20. It says: ('young person' means a person over compulsory school age who has not attained the age of 19 years.)". It may be that that would not cover his point, but I was not quite sure whether he had noticed what was said.

Lord Renton

I am most grateful to the noble Baroness because I had not realised—I think, quite frankly, she was speaking a little bit faster than my brain could accommodate the matter—that that amendment was part of her scheme, but now that she has drawn it to my attention I think it would be an alternative way of doing what is necessary and therefore it may be that the way I suggested becomes unnecessary. This is a drafting matter on which we would welcome the views of my noble friend Lady Young. But, leaving aside the drafting for the moment, I think that in principle the noble Baroness, Lady David, has made an important proposal which deserves the support of your Lordships' Committee.

Baroness Young

The noble Baroness, Lady David, has moved Amendment No. 49 and spoken to a number of other amendments, all of which cover the 16-to-19 year olds. She is quite right in saying that is an important part of their lives. It is a matter to which of course the Warnock Committee drew attention, and I understand and respect her views and those of my noble friend Lord Renton on these matters. I was very glad she said that in fact these were probing amendments to obtain the Government's intention on this, because as she will know, it is a matter which was very fully discussed in another place. However, it is right that we should look at this in this Chamber.

Perhaps I might begin by explaining the present position and say that for 16-to-19 year olds who are still at school the local education authority will have a duty under the Bill to identify those with special educational needs, and all the provisions of this Bill will apply to them. Those who have left school are not covered by the Bill. The local education authority will still have responsibilities towards them and they will be obliged to take account of any demands for further education, as they would of a demand from any non-handicapped person or any child who has not got special educational needs. Those responsibilities derive from the 1944 Act and are not being changed at present.

However, as the noble Baroness will be aware, particularly as she has quoted from our consultation document on the legal basis of further education, the whole question of the legal provisions regarding further education is under review by a working group of officials from central and local government. Their report has been published and is the subject of widespread consultation. In the circumstances, we feel that it would be premature to impose a specific requirement at this stage because, although this is an important group of students, we would be imposing it in advance of decisions that we are about to take on further education more generally.

The noble Baroness raised quite a number of specific points which are covered by her different amendments. I hope very much that she and my noble friend Lord Renton, and others who are particularly concerned about this matter, will take the opportunity of the consultation document to make quite plain their view about these matters, because this is something that we want to know. Her Amendment No. 52 covers a great many very detailed proposals, and she will know that these are all the kind of matters about which we should like a view on our consultation document, and of which we would wish to take account.

Perhaps it would be helpful if I said again that it is our firm intention to make regulations as to the frequency of assessments under Clause 7(7), and to stipulate that a reassessment must be undertaken no more than two years before a child is expected to leave school. It will be important to tie this requirement to the anticipated school-leaving date, rather than to the child's 16th birthday, as required by the clause. Much can happen in a child's development between, say, the 14th and 17th birthdays, and we therefore need to consider how best to achieve as late a reassessment as possible in the child's school life, while avoiding the possibility of a child slipping through the net because he was expected to stay on at school but suddenly decided to leave.

On the noble Baroness's last amendment. No. 69A, on definition, which, clearly, would be necessary were the preceding amendments to be carried, the definition of a "young person" as so drafted would have been required in this legislation only if the provisions of the Bill had extended to young persons not at school. Of course, it is precisely because it does not extend to them that the definition is drawn in this way. Once again, I do not wish to suggest to the Committee that the Government think the present position is the right one. We have our consultation paper out entirely because we have to look at the whole of the legal basis of further education, and the children covered by this Bill are among those about whom we particularly wish to get the views of all interested parties I can give an assurance to the Committee that the Government will fully take them into account.

I hope that from what I have said the Committee will realise that I cannot accept the amendments, although I understand the reason for putting them down and I recognise that this is a very important area. I cannot accept them because of this consultation document and because of the uncertainty about the legal basis of further education, and it will be necessary to put this right before we can move on this other matter. But, again, I hope that those who are interested in this matter will not hesitate to write in with their views.

Viscount Ridley

May I add a word in support of my noble friend Lady Young on this matter, on behalf of the Association of County Councils? As has been said, this document on the legal basis of further education needs to be studied further before legislating in this Bill. I do not think there is any argument about the spirit of the amendment; it is merely a matter of timing. Can my noble friend the Minister say whether there is a possibility of legislation on this subject in the next Session?

Baroness Young

It would not be right for me to give any kind of undertakings about when legislation might occur. But I can assure my noble friend Lord Ridley, and other members of the Committee, that we are very mindful of the concern about this matter. It is a serious matter for the whole of the educational service—for other students, quite apart from students with special educational needs—and there will certainly be no unnecessary delay at all on the matter.

Baroness Gaitskell

I want to add only one sentence. Since there is so much concern about the matter it seems to me that, as the noble Lord, Lord Renton, implied a further sense of urgency is really very necessary. It is not something about which we can wait for long. It is extremely important at this time for our young people. I hope that the noble Baroness the Minister will bear that in mind.

Lord Renton

If my noble friend is right, that the Bill does what we want it to do, then one would perhaps be willing to be patient and not amend it in the way suggested by the noble Baroness, and might be willing to wait until the Government have made up their minds about this document on the legal basis for further education, and have made such further legislative provisions as are needed. But that is a fairly big "if". Speaking for myself, I shall want to consider very carefully between now and Report stage what my noble friend has said. I hope that she is right, because it would seem that we would have to wait some time before action were taken upon this document.

I am glad that my noble friend Lord Ridley attempted to persuade my noble friend Lady Young to say when we might get legislation. But in the reality of parliamentary programmes, it does not seem that we would get it even in the next Session. We might have to wait two or three years for this. Meanwhile, the system, which we hope will be established and will be a good one under this Bill, will have got under way. I only hope that there will not be a gap in the arrangements. But I shall read my noble friend's speech very carefully.

Baroness David

I am very grateful for the support from the noble Lord, Lord Renton, and for the qualified support from the noble Viscount, Lord Ridley, and for the care which the Minister has taken in responding. I am quite prepared to believe that there are some drafting errors, although almost the whole of Amendment No. 52 and, certainly, the whole of Amendment No. 53 are taken from the present Education (Scotland) Bill. I am aware that local authorities have to pay attention to the demand from 16 to 19 year-olds, but this does not mean that they always provide what is wanted.

The Minister said that it was premature to put in a specific requirement. I must admit that I am still not happy to have nothing about that age group in this Bill. We may have to wait for more than a year or so before there is legislation. Even if we put something into this Bill and there was legislation in the next Session, it is possible to repeal. I notice that in the repeals schedule there are three sections of the 1980 Act which are repealed, and this is only 1981. I shall, of course, read very carefully what the Minister has said but, like the noble Lord, Lord Renton, I am not entirely happy about leaving the situation. I may well come back at Report stage with slightly different amendments covering this area, but at the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 50 not moved.]

11.48 a.m.

Baroness David moved Amendment No. 51:

After Clause 9, insert the following new clause:

("Adult Training Centres.

. A local education authority may make available to any adult training centre the services of any teacher who—

  1. (a) is employed by them in a special school or in an ordinary school having one or more special classes; and
  2. (b) has agreed to provide his services for the purposes of the arrangements.").

The noble Baroness said: I have already touched on this amendment, which deals with a local education authority putting some educational input into adult training centres. There has been a lot of enthusiasm for this amendment from a great many different areas and, although I know that the Government are against it, I am still very keen to have it in. I should just like to say something about the National Development Group for the Mentally Handicapped. They produced a pamphlet in 1977 entitled Day Services for Mentally Handicapped Adults, which suggests that adult training centres—I shall refer to them as ATCs in future, in order to save time—should be renamed social education centres and should adopt a more positive and carefully planned educational structure. Education, in its broadest sense, should enable them to develop their own personalities and abilities and to become aware of, and able to participate in, what is going on around them. Development cannot be left to chance. It must be consciously fostered.

The pamphlet defines education as everything which helps an individual to learn and develop and argues that this process should be encouraged in all mentally handicapped students. Not all but many handicapped people enter ATCs from school and they continue to require teaching above the age of 16. Many are a long way below their full learning potential and need further help in several aspects of education; for instance, social skills, basic literacy and numeracy and vocational training. Outside educational support should be sought.

It is suggested that the initial point of contact with the local education authorities should be the county adviser for special education whose knowledge of available provisions should be fully exploited. The centres should also seek advice on particular subjects, such as reading (where the adult literacy scheme might be able to help), drama, music, art, physical education, language and communication. The local educational authorities' advisers for visually and hearing impaired people should also be used, where necessary.

In short, a strong educational input is needed. We may not be able to do at once all that that particular document published by the mentally handicapped group suggested, but certainly we can make a start by asking the local education authorities to make teachers available from the ATCs. The AMA support this. I am not going to be convinced by the Government saying that this can already be done. I want it to be written into the Bill.

I was interested in the document which the Association of Directors of Social Services put out after the special needs document was published. They referred to paragraph 53 of the special needs White Paper and said that they dislike the Government's rejection of the Warnock Committee's recommendation that local educational authorities should be made responsible for a specific educational element and for saying that it is not practicable. Those are the words of the White Paper. These centres will be run efficiently only if they are run under single direction. That again is from the White Paper. Neither of these statements is supported by any evidence, the directors say. They go on: A number of progressive authorities—for instance, Liverpool —have introduced qualified teachers from the local education authorities into day centres for the physically handicapped with very real advances during the last few years, and many parents of mentally handicapped young persons are keen and anxious for such a development". It may well be that under the present legislation this can happen but I do not believe it will happen so readily if this is not written into the Bill, and this seems to me to be a very appropriate place to have it. I beg to move.

Lord Renton

On this occasion I wonder whether the noble Baroness is on good ground. As I understand it, the Government have already made it clear that local education authorities have the power to make teachers available to adult training centres. The burning question is whether there are enough teachers in general who are trained in giving instruction to the handicapped of various kinds so as to fill the various places that will be needed. But certainly the power is there.

Baroness Young

As the noble Baroness, Lady David, has said, this amendment was tabled in another place and was discussed there. I am glad that it has been retabled because it provides me with an opportunity to place on record what is a rather complicated legal point. I think it needs to be understood in this House as well as in another place and outside Parliament. I am grateful for the support of my noble friend Lord Renton.

The Government readily accept that local education authorities should have adequate powers to make teachers available to adult training centres. When this question was considered in another place the Government undertook to introduce a suitably worded provision to that effect. When that undertaking was given we understood that a local education authority's powers to make teachers available to adult training centres stemmed from the provisions of Section 41 of the Education Act 1944 and might depend on the detailed contents of each local education authority's scheme for further education. This, however, is only part of the story. Local authorities also have powers to make educational provision in adult training centres under either the National Health Service Act 1977 or under the Local Authorities (Goods and Services) Act 1970. So in fact local authorities have powers that are contained in this amendment which the noble Baroness has tabled.

Adult training centres are run by local social service authorities under Section 21 of and paragraph 2(1) of Schedule 8 to the National Health Service Act 1977. Under this provision the social services authority already, therefore, has the power, subject to the appropriate approval from the Secretary of State, to make facilities for training available and to pay for persons to give training. What I think in this case, as in other matters which we have debated, will be the effect of this Bill when it becomes an Act is that once again it will force local education authorities and others to look at all these provisions. Inevitably they will look, as they must under the Bill, not only at the provisions for children who are still of compulsory school age; they will also look at other provisions to see how they are working.

I take entirely the point made by the noble Baroness. I think it is important that there should be this educational element; I do not believe that there is any disagreement among us on that point. There is the power to make this possible under existing legislation. What I think is required, as in so many of these cases, is the ability to make it available as this becomes possible. I believe that one of the consequences of the passage of the Bill is that this area will be looked at, as will others. I hope very much, because I believe that the amendment is unnecessary, that the noble Baroness will withdraw it.

Viscount Ridley

Is not the purpose of the amendment met by Clause 3 of the Bill? I regret that I was unable to be here when that clause was discussed in Committee. However, I think that the point is covered by Clause 3, as agreed to.

Baroness Young

Clause 3 covers provision otherwise than at schools. The noble Baroness's point, which I think is directed particularly at adult training centres, is a matter which she raised, I think I am right in saying, in the original debate which we had last January. At that stage I was unable to give an answer because we had not got information about the other relevant Acts of Parliament. It is a separate point from Clause 3, which is concerned with education at home and with education in hospitals. It is an important point, but I believe that the present law allows it to be met.

Baroness David

I am not surprised by the reply from the Minister, although I am disappointed. Having myself seen what a tremendous difference the educational element can make in an adult training centre, I feel that is vitally important. However, as I have not had much support from the Committee, I shall withdraw the amendment. I do not guarantee, though, having thought again, not to bring it back on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 52 and 53 not moved.]

Clause 10 [Duty of health authority to notify parents etc.]:

Lord Renton moved Amendment No. 54: Page 8, line 14, after ("authority") insert ("or a local authority").

The noble Lord said: I beg to move this amendment. Frankly, I am a little puzzled as to why the obligation which is placed upon "authority" in Clause 10 is limited to the health authorities. The functions which precede Clause 10 of the Bill are to be performed mainly by local education authorities. It so happens that paragraphs (a) and (b) of Clause 10 are matters which I think will be within the knowledge of local education authorities or of social services departments. At any rate, it will be within the knowledge of local authorities rather than health authorities. And local authorities will nearly always be closer to the parents than an area health authority. Indeed, sometimes they will be closer to the parents than a district health authority.

Be that as it may, it seems to me that if these rather important obligations are to be placed upon authorities it would sometimes be appropriate for the local education authority or the social services authority to discharge those functions. This is really a probing amendment and if my noble friend thinks that there is a good point in it she might care to consider it from the point of view of drafting and also that of substance. I beg to move.

12 noon

Baroness Jeger

I should like to speak briefly in order to support the noble Lord on this amendment. I am sure it is absolutely essential for the successful carrying out of this Bill for there to be the closest co-operation between the social services and the education and health services. It seems to me that we shall be losing an opportunity of encouraging the closer integration of the services. I have myself seen from the town hall level, how, with the best will in the world, officers in different departments working to different budgets, even though they may meet for case committees, do not always maximise the potential help available because of these divisions. Therefore, I think if we can somehow get across the joint responsibility of the other authorities and not leave this clause as it is, apparently relating to the area or district health authority only, it will be beneficial.

I should also like to ask the noble Baroness if there is any way in which she could more closely identify the officer with whom contact is to be made. The words "area or district health authority" do not seem to me sufficiently to pinpoint the responsibility and, as officials and parents are trying to learn how to use this Bill, I am wondering whether she can give any advice on that point also.

Baroness Faithfull

In order to save time and not to go over the same ground again, I wonder whether, under this amendment, I may speak at the same time to Amendment No. 59, in which it is recommended that as well as notifying the local education authority, the local social services department should also be notified.

I seek to draw the attention of the Minister and of the Committee to the administrative structure within local government and I think that has been touched on by the noble Baroness, Lady Jeger. As your Lordships must know, I regretted very much that the terms of reference of the Warnock Committee did not include the needs of families of children with learning difficulties as well as the children themselves. A child spends seven hours in school and 17 hours at home. Therefore, the child must be seen in the setting of his family and the setting of his school. As the local government structure stands at present there are two departments involved in the needs of children with learning difficulties—the education department and the social services department.

The noble Baroness, Lady Darcy (de Knayth), and the noble Baroness, Lady David, moved an amendment concerning the adaptation of school buildings. For some physically handicapped children there also need to be adaptations to the home, which must be carried out by the social services department under the Chronically Sick and Disabled Persons Act 1970. Therefore, it is essential that the social services departments also are notified by the health authority of children with a physical disability.

With regard to the services for children under five, I am not clear to which department this responsibility would fall under this Bill. Nursery schools of course stand referred to the education department but day nurseries and day centres stand referred to the social services department under the Health Services and Public Health Act. The hours of day nurseries enable mothers to go out to work or assist those mothers who are unable to cope with their children. The pre-school playgroup movement, which does much for handicapped children, is funded both by the Department of Health and Social Security and, to a lesser extent, by the Department of Education.

There is the question of holidays for children who are impaired and handicapped. These are usually arranged by social services. Finally, there is the area of counselling for parents. Is that the role of the education welfare service or is it the role of the social services? I am sure the Minister will say that the relationship between the two local authority departments and their overlapping roles must be worked out by the local authority, but at some time the structure and relationship and role of the two departments, for the sake of the parents, will have to be more closely defined.

For the social services department to receive a copy of the notification sent to the education department of children with learning difficulties will cost nothing and may help the parents, and will probably bring together the relationship between education and social services in this difficult area. Therefore, I would submit that both the social services and the education department should be notified by the health department. I have spoken to this amendment now because it is in the same area and I hope to save the time of your Lordships.

Viscount Ridley

Although I do not object in principle to the amendment which has just been spoken to by the noble Baroness, Lady Faithfull, to which we seem to have moved, I wonder whether it is right that this sort of Bill should legislate as to how a local authority's committees should work together. Only in the case of inner London are social services departments and education departments not in the same authority and my own experience is that liaison between the two is—as it should be—extremely close nearly all the time and, however desirable, I do not think that this is the sort of thing about which we should legislate. It seems to me that we are interfering too much in the functions of local authorities.

Lord Taylor of Blackburn

I did not intend to intervene in this debate at this stage but I feel that I must make one point. There is a lack of liaison between the various departments and, as the noble Viscount, Lord Ridley, has said, there should be this coming together, to which my noble friend also referred. In this Bill we are trying to work more closely together and I hope the noble Baroness, Lady Young, when she replies, will see that there is this lack of liaison. They should work together as one team.

Baroness Lane-Fox

I should like to support my noble friend Lady Faithfull, in her remarks on the two amendments. I feel very strongly that households in which someone is disabled deserve the clearest possible directions as to where to get the information and counselling they require. They need streamlined channels through which to work and any spare capacity that is available for help and ingenuity is badly needed at home. Life for those families can be very confusing already, without receiving inquiries from, possibly the wrong department, and from more than one department. We should hope for the maximum information to be obtained from one clued-up source, because too often people find themselves having to tell the same story to several officials, each of whom can only deal with part of a problem. That is not much fun when the question being dealt with is the delicate and personal one of a young disabled child. It will indeed be helpful if the education and social services departments will collaborate more than they do in practice—to the very fullest in fact—on this particular point.

Finally, I am afraid I have to disagree with my noble friend Lord Ridley; co-operation does not always take place. I support these two amendments which were so ably spoken to by my noble friend Lady Faithfull.

Baroness Young

My noble friend Lord Renton in moving the original amendment has drawn attention to what I think we would all agree is a very important point; namely, the need for co-operation between local authority services. I would like at the outset to give an assurance that this is a matter that we believe is best dealt with in post legislative guidance and a matter to which we will draw everyone's attention. However, as my noble friend Lord Ridley quite rightly said, with the single exception of the ILEA, social service and education departments form part of the same local authority. The effect, therefore, of this amendment would be to require a local authority, which includes the local education authority, to inform the local education authority of the existence of a child with special educational needs. As my noble friend Lord Ridley said, outside of Inner London this amendment would not have any meaning.

The noble Baroness, Lady Jeger, asked me a quite specific point about the meaning of the "officer of the authority in Clause 10 subsection (b). As I understand the position, after the re-organisation of the health service, there will be a co-ordinating doctor, akin to the specialist in community medicine, who deals with child health. It will be this doctor who will pass information from the health authority to the local education authority. The clause as drafted will cover any officer of the local authority who may come into contact with the child.

Baroness Jeger

May I intervene for a moment to get this absolutely clear? Would it not be better to put into the Bill"with a medical officer of the authority", because as it stands it could be a clerk or any non-qualified person who would have the duty.

Baroness Young

I think we must remember that at this stage we are talking about primary legislation. This clause has been written into the Bill since the Bill was originally published, following upon debate in another place. We think it is an important new clause, covering very important new principles. I think we have to allow in primary legislation for the judgment of those in the hospital services, local authority services and social services, to allow them to use their judgment about the appropriate person. I am quite sure that the effect of this would be that the information would be passed on by someone who was responsible for the assessment, not somebody who may perhaps have typed the letter. I think that is a very important distinction, and I am quite sure the hospital authority would regard it as inappropriate for other than a properly qualified person to pass on the information.

Perhaps I might now turn to the amendment of my noble friend Lady Faithfull. We understand the intentions of the amendment, but of course we have before the Committee an education Bill. We have accepted this new clause, which will ensure that local education authorities receive early notice of children under five years of age who are likely to have special educational needs. We do not feel it would be an appropriate use of the Bill to ensure that a child with a disability or handicap is brought to the notice of all the services which might have a part to play at some stage. I believe the noble Baroness would recognise that social workers clearly have a most important and valued role in support of some families with a handicapped child, but they will not necessarily have a role in all cases where children have special educational needs. Therefore, this is an area once again where we need to take a commonsense pragmatic approach, which I believe will ensure that real co-operation will take place where needed.

The noble Baroness also raised a number of other points, about adaptations for housing and so on. Could I just confirm that social service authorities have responsibility for identifying, assessing and advising on the housing needs of individual disabled people, including adaptation of their homes, in collaboration with health authorities. This responsibility covers all people of whatever age, and it therefore covers children under five years of age. Social services also have duties in respect of meeting the need for aid and adaptations in the homes of individual disabled people where satisfied that they are necessary for their safety, comfort or convenience. The Government accept the importance of good communication between different departments, but we believe that the Bill as drafted makes this point, and it would not help or add anything to the legislation to write in more detail than is already in the Bill. I hope with that assurance my noble friend will withdraw his amendment.

Lord Renton

Speaking for myself, I am convinced by what my noble friend has said, so far as my own amendment is concerned. She has persuaded me that it is not necessary and would not be of assistance. I would not dare to express an opinion on the small controversy that exists between the two noble Baronesses, both of whom are noble friends. So far as my amendment is concerned, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Baroness Jeger moved Amendment No. 55: Page 8, line 14 after ("authority") insert ("or family doctor").

The noble Baroness said: I beg to move Amendment No. 55, and perhaps I may speak to amendments Nos. 56 and 57 at the same time. The purpose of this amendment is to try to make clear the part that the family doctor is supposed to play in carrying out the requirements of this Bill. I am sure we are all aware that it is the family doctor who is traditionally the first point of contact when there is anxiety about a child's health and wellbeing.

I raised this point in a previous amendment, but I am sorry to say that I am still unclear as to the intentions of the Government in this matter. I am trying to look at the thing from an ordinary surgery point of view, where the mother brings a small child to see the family doctor. He is usually, in my experience, very busy. If he feels that he needs further help, then the usual point of referral is to the consultant at the nearest hospital. At what point in this chain is the provision of this clause—the duty under this clause—to be brought into effect. I want to know whether the BMA has been consulted, whether hospital doctors have been consulted as to their acceptance of this very new and additional responsibility. All the family doctors I know claim that they already have far too many letters to write. The proposal that they should write some more must be clearly justified to them in the interests of their patients, and I am sure that every doctor is guided primarily by that condition.

When I asked the noble Baroness on 6th July what exactly was to happen, I said, in col. 553: Is the family doctor to get in direct touch with the education authority and not go through the local area health authority? That is, when he is dealing with the child who may be helped by this Bill. The noble Baroness replied: No. What would happen would be that the family doctor would tell the parents of his suspicion that the child had some special needs, and the parents would trigger off the mechanism. They could ask for an assessment. I am not happy about that explanation, because with great respect—and I know the vast majority of parents are only too anxious to do anything that is suggested to them to help their child—there could be serious failures in this direction. The family might move. Parents might not be very literate. It may be a divided broken marriage with all sorts of distracting tensions that do not always put the child first, and I know of such very sad cases. I know of cases of mothers being given a letter to a hospital and not taking the child. I know that those are exceptional cases, but we cannot ignore them.

If the only responsibility of the family doctor in this connection—the family doctor to whom we are saying for the first time, "You are involved with the educational needs of children under five—is to tell the parents that they have something called a right of assessment, then I do not honestly think that it is good enough. We shall not know whether the parents follow it up. The family doctor may be so busy that he has never even heard of this Bill. After all, doctors get enough to read without reading legislation passed in Parliament. Therefore, we could have a serious gap in the provisions that we are trying to make.

I hope that the noble Baroness will be able to reassure me. But we are all deeply concerned that the family doctor who is the closest person to the people concerned, who knows the family as a whole and who knows the parental difficulties and strains, as well as understanding the clinical problems of the child with whom he is dealing, should be fully integrated with the provisions of this Bill. I very much hope that the noble Baroness will be able to give us some further information. I beg to move.

12.21 p.m.

Lord Lucas of Chilworth

Before my noble friend responds, I should like to ask the noble Baroness, Lady Jeger, whether she is really right about the family doctor. In the type of circumstance which she has described I should have thought that the family were probably patients of a group practice where pieces of paper would move around, rather than there being one individual doctor looking after one individual family. I do not believe that, in many of the conurbations, the individual set-up which we used to recognise 20 years ago is, in fact, in practice. I wonder whether the noble Baroness could help me on that point with her vastly superior knowledge of the matter?

Baroness Jeger

Of course there has been a considerable increase in group practices and we are all very pleased about that. Indeed, it was referred to in the Warnock Report. But within many of the group practices and partnerships people do register with one particular doctor and I think that the use of the words "family doctor" is still relevant whether he is in a group practice or in a partnership or working, as some do, individually. I am sure that I would be out of order if I went on to a further examination of the organisation of the National Health Service. I have used the words "family doctor" because I think everybody understands what they mean.

Baroness Gaitskell

I should like to support my noble friend Lady Jeger on this matter. It seems to me that where you have a family doctor who is kind and understanding and who knows the family, there can be nothing but good in consulting him about education for the unfortunate children who have any kind of disability. It seems to me that there can be nothing against that point of view. I disagree with the noble Lord, Lord Lucas of Chilworth. If a family doctor is any good he will be good as regards this matter, and many of them are very good indeed.

Baroness Young

I hope very much that I can give the noble Baroness, Lady Jeger, the assurances for which she has asked. I should like to say on this matter that district health authorities will be asked in guidance to ensure that general practitioners in their districts are aware of the importance of informing parents of their right to request an assessment. We cannot, in any case, place doctors under duties which could run counter to their code of conduct in respect of doctor/patient relationships. So there is a very practical reason why we cannot write this into the Bill. But in guidance we can try and make sure that parents know of their right to call for an assessment should it be needed. Also—and I believe this to be very important—as I am sure many of your Lordships will appreciate general practitioners have a contractual relationship with the health service and it is not possible for us to place duties on them by means of this legislation.

However, I should like to give an assurance and perhaps I am stating the obvious in stating it now, that although this is an education Bill we, of course, consult with all our colleagues in Government because it is a Government Bill. Therefore, there will have been consultations before the legislation and there will be full consultation with the BMA and others before guidance is issued following this Bill.

There might be one other further point of reassurance that I can give and that is there is already in most areas a possibility for comprehensive assessment of very young children which is often carried out by a district handicap team who have identified a child as having a handicap. That assessment process includes a considerable social services input including both the hospital social work department and the local social services department. The establishment of district handicap teams was recommended by the Court Committee on Child Health Services in 1976. The role of these teams is to bring together representatives of health, education and social service for the purpose of providing a multi-disciplinary assessment and support service for handicapped children and their families. The Department of Health and Social Security has encouraged the establishment of district handicap teams by the issue of a circular and the indications are that good progress is being made. That information is quite helpful in relation to the last series of amendments that we debated and also for the recognition that there are a number of parts of the health service which are directed to identifying and helping children under the age of five.

As I have already indicated, the district health authorities will be issuing guidance to family practitioners following this Bill to make them aware of their responsibility to inform parents of their right to ask for an educational assessment where their child has been identified as having a handicap or as possibly requiring some special education. I hope that with that assurance the noble Baroness will wish to withdraw her amendment.

Baroness Jeger

I am sorry but I must disappoint the noble Baroness because I do not really feel that she has answered all the points that were raised. For instance, I still do not know what is to happen to the child who goes from the family doctor to the hospital consultant. I think that throughout this Bill we are getting too much guidance and too little law. Time after time we have raised from all parts of the Committee very serious questions about the Bill only to be told that it will all be put right in guidance. The noble Baroness has done that again this morning. In fact she says that in the guidance they will make sure that parents know their rights to ask for an assessment. That is not the real world. Is every parent of a handicapped child sitting around and suddenly writing off because he or she has heard something in the newspapers about the right of an assessment? It does not work that way.

If the parents' rights are to be put into something called guidance, how does the guidance get to the parents? I can understand that the guidance can go to the BMA —and as I mentioned previously I am concerned about hospital consultants as well—but how on earth are harrassed parents in these difficult situations supposed to get this guidance delivered? That is a question which I cannot answer myself and I do not think that the noble Baroness has answered it. Therefore, I would like to test the feelings of the House by dividing.

Baroness Young

Before the noble Baroness sits down I should like to make two points because I think that there is a basic misunderstanding about this amendment. If she reads Clause 10 she will see that it is designed to identify children under the age of five who might have special educational needs. She says, "How will the parents know?". She is right in saying that almost certainly the first person to tell the parents will be the family doctor. The family doctor will be informed because the district health authority will draw his attention to the need to inform the parents. But in an Education Bill it is not right to put an explicit obligation on family doctors, which, of course, is a matter for the Health Service. I think that this is an important point to recognise.

Baroness Jeger

As regards that, I should gladly have withdrawn my amendment if the noble Baroness had accepted the underlying anxieties and had promised to do something on Report or at a later stage to cover these points. She said in one connection that there was this problem of confidentiality between doctor and patient, but that must apply equally when a school doctor or a hospital doctor is involved with a patient. Yet that does not seem to me to come into consideration. I am sorry, but I must press this amendment to a Division. I beg to move.

12.31 p.m.

On Question, Whether the said amendment (No. 55) shall be agreed to?

Their Lordships divided: Contents, 43; Not-Contents, 68.

Amherst, E. Gaitskell, B.
Ardwick, L. Galpern, L.
Aylestone, L. Gladwyn, L.
Banks, L. Gosford, E.
Beaumont of Whitley, L. Hale, L.
Bernstein, L. Hampton, L.
Bishopston, L.[Teller.] Hanworth, V.
Boston of Faversham, L. Henderson, L.
Cledwyn of Penrhos, L. Houghton of Sowerby, L.
Collison, L. Ingleby, V.
Cooper of Stockton Heath, L Jeger, B.
Darcy (de Knayth), B. Jenkins of Putney, L.
David, B. John-Mackie, L.
Evans of Claughton, L. Kilmarnock, L.
Ewart-Biggs, B. Leatherland, L.
Llewelyn-Davies of Hastoe,B. Strabolgi, L.
Taylor of Blackburn, L.
Longford, E. Taylor of Gryfe, L.
McCluskey, L. Underhill, L.
MacLeod of Fuinary, L. Wallace of Coslany, L. [Teller.]
oram, L.
Peart, L. Wynne-Jones, L.
Ponsonby of Shulbrede, L.
Airey of Abingdon, B. Lane-Fox, B.
Alexander of Potterhill, L. Lauderdale, E.
Alexander of Tunis, E. Lawrence, L.
Avon, E. Long, V.
Balfour of Inchrye, L. Loudoun, C.
Belstead, L. Lucas of Chilworth, L.
Bessborough, E. Lyell, L.
Blake, L. Mackay of Clashfern, L.
Campbell of Alloway, L. Macleod of Borve, B.
Cathcart, E. Mancroft, L.
Chelwood, L. Marley, L.
Colwyn, L. Marshall of Leeds, L.
Cullen of Ashbourne, L. Melville, V.
Davidson, V. Murton of Lindisfarne, L.
De Freyne, L. Orr-Ewing, L.
Denham, L.[Teller.] Plummer of St. Marylebone, L.
Derwent, L.
Drumalbyn, L. Radnor, E.
Dundee, E. Reigate, L.
Eccles, V. Renton, L.
Effingham, E. Renwick, L.
Ellenborough, L. Richardson, L.
Elles, B. Ridley, V.
Faithfull, B. Robbins, L.
Ferrers, E. Rochester, Bp.
Gainford, L. Romney, E.
Gardner of Parkes, B. St. Davids, V.
Glenkinglas, L. Sandys, L.[Teller.]
Gormanston, V. Selkirk, E.
Haig, E. Soames, L.
Hailsham of Saint Marylebone, L. Strathmore and Kinghorne, E.
Hives, L. Teviot, L.
Home of the Hirsel, L. Vivian, L.
Hornsby-Smith, B. Young, B.
Kinloss, Ly.

Resolved in the negative, and amendment disagreed to accordingly.

[Amendments Nos. 56 and 57 not moved.]

12.39 p.m.

Lord Renton moved Amendment No. 58: Page 8, line 19, leave out ("and").

The noble Lord said: I beg to move Amendment No. 58, which looks simple enough, and indeed is. It is merely a paving amendment for Amendment No. 60, which is the amendment of substance. May I suggest that it might save time and be convenient if we were also to discuss Amendment No. 60 and Amendment No. 60A, which is the Government amendment on the Supplementary List, because they all cover the same ground?

This matter of giving parents support after identification of the child's handicap is a very vital one for the parents. This matter was discussed at considerable length in the other place, when the need for notification to the parents of suitable support organisations was approved by all parties, and the Government promised to consider the matter further. That is why we now have Amendment No. 60A before us today. I am grateful to my noble friend, Lady Young, for tabling amendment No. 60A and for thus letting us know at Committee stage, rather than later, how the Government feel about this matter.

Frankly, there is not very much difference in substance between the Minister's amendment and my amendment. But, with humility, I venture to say that the drafting of my amendment is very much more simple. Her amendment adds a new subsection (2). It creates a rather strange situation. Whereas the clause itself begins: If an area or district health authority", the new subsection proposed by the noble Baroness would also begin: (2) If, in a case falling within subsection (1)". I wonder if we may go into this point, although not at great length because it has been covered so fully in the other place. I believe that one should place on record what the position is and the need for something to be done.

In the National Society for Mentally Handicapped Children a survey was carried out of 606 families—some of them were one-parent families and some of them were two-parent families—in order to establish how old a handicapped child was before the family joined the society. Only 4 per cent. of the families said that the child was six months old or younger; 6 per cent. said that the child was aged from six months to one year; only 27 per cent. said the child was between one and five years of age; and in 41 per cent. of the families, the child was between 5 and 16 years of age. In 18 per cent. of the families the child was more than 16, and 4 per cent. of the families were counted as "Don't knows".

That means in effect that very few parents sought support of the National Association for Mentally Handicapped Children at any rate before their mentally handicapped child was some years old, and not until a long time after they discovered that the child was mentally handicapped. Quite frankly, we in the society were rather shocked by these figures. The survey was conducted by the Government sponsored Policies Studies Institute, and so it was a reputable survey. I hope that I do not have to persuade your Lordships that it really is desirable that parents should be notified of a suitable support organisation. The question is, how should this need be met?

Fortunately, we in this county have a splendid range of voluntary societies at national and local levels which cover a wide range of handicaps. They include the Royal National Institute for the Blind and the Royal National Institute for the Deaf, and various other forms of physical handicap are covered in addition to what is done by RADAR. For example, there are special voluntary organisations dealing with spinal injuries, and there are present Members of your Lordships' Committee who know so much more about them than most of us do. Multiple sclerosis and other forms of physical disability are also covered by specialised voluntary bodies.

I should just like to say a word about MENCAP. This organisation covers the whole of England, Wales and Northern Ireland with over 500 branches. The branches are run by our local volunteer members but we also have 12 regions—Northern Ireland is one of them—where we employ salaried trained staff, administrative and otherwise. Generally speaking, in the case of each handicapped child whose parents are anxious to get support we would be able to help within our present organisation. May I say, since my noble friend Lord Home of the Hirsel is present in the Chamber, that MENCAP is not making a takeover bid for Scotland, because Scotland has excellent arrangements of its own.

We know that in addition to the various voluntary bodies, government departments and other organisations can also give support to any case in which the existence of a local support organisation is not established. It is for that reason that I very much welcome an improvement to both the Government's amendment and my own, represented by Amendment No. 61, in the names of Lady David, Lady Darcy (de Knayth) and Lord Banks. Amendment No. 61 refers not only to voluntary organisations but also to government departments and other public bodies as well. This amendment has the further important advantage that the parents of handicapped babies would have to be notified twice; once upon identification and again after six weeks, in writing. I wish I had included the words "in writing" in my own amendment.

I should have thought that this was not a matter into which we should rush to a conclusion on this occasion. I believe that even my noble friend Lady Young may wish to consider further her own amendment, partly from the drafting point of view, but also to see if she feels that she could go some way towards meeting the points of substance contained in Amendment No. 61. We should not rush into this, but we should carefully consider the matter and return to it again at Report stage. I beg to move.

Lady Kinloss

I should like to support this amendment. MENCAP's experience has been that after parents have been notified that their child is handicapped, stress and unhappiness has been greatly reduced by the early provision of helpful information, advice and counselling from various organisations.

12.49 p.m.

Lord Lucas of Chilworth

In giving support to the amendment moved by my noble friend Lord Renton I can only follow the comments which I made at Second Reading. I was rather taken by my noble friend's amendment in the sense that it has the great virtue of simplicity, with the exception of one part of the wording which refers to: the nearest suitable support organization". This implies that in acquainting parents with their child's handicap the local authority may put a seal of approval on an organisation. I do not necessarily believe that a local authority should say "This organisation is good" or, obversely, "This organisation is bad". I believe that it is the duty of the local authority to inform parents of the existence of organisations.

While my noble friend has spoken rather particularly of the better known and the national organisations with branches up and down the country, when I was speaking at Second Reading I was concerned with the less formal groups of parents who have not perhaps achieved a national status but have found consolation and benefit in joining together to discuss their problems. When I looked then at the Government's Amendment No. 60A I shared the view of my noble friend in that it starts with this unhappy word"if". That does not imply to me any obligation at all.

In that amendment, as in Amendment No. 61, we have the expression" the authority are of the opinion", and in Amendment No. 61"which in the opinion of the authority". I do not believe that it is to be left to a matter of opinion. I believe it should be quite clearly set down that the authority have a duty to advise parents of handicapped children of organisations and bodies, whether they are governmental, national, or informal, which are available in the area that may give help. After all, the organisations, whether they are formal or informal, have their own duty upon themselves to say "Yes, we can help" or "No, we cannot help you". That is where I think there should be some change over these three to embrace that kind of situation.

Lord Banks

When we discussed this matter on Second Reading I expressed support for the principle which lies behind this amendment and also behind Amendment No. 60A and Amendment No. 61. I reaffirm that support today. But an amendment in similar terms to Amendment No. 61 was moved by my honourable friend Mr. Clement Freud in another place. I still prefer the wording of that amendment because of its comprehensive nature, to which attention was drawn by the noble Lord, Lord Renton. I attach a certain amount of importance to the fact that Amendment No. 61 provides for the notification to be done twice at an interval of six weeks, the reason being that the parents may well not be in an emotional state that they take in on the first occasion when they have just had the handicap confirmed the significance of the information about the support organisation, but six weeks later it comes again when they are more adjusted to the situation and ready to take advantage of such help and assistance as is available.

I welcome the fact that the Government have tabled an amendment to incorporate the general principle, but it seems to me that it is lacking in certain respects. It of course limits the operation to educational need, and it may be said that since this is a Bill dealing with education it is right that that should be so. But then there would still be a need to place the duty on the health authority to consider needs running wider than the purely educational. The reference to two notifications is of course not included in the Government amendment, as the noble Lord, Lord Renton, pointed out, and the Government departments and public bodies are not included either, nor the necessity to put the notification in writing. I was interested in the suggestion that the noble Lord, Lord Renton, made that perhaps we could still see whether from these three amendments we could incorporate elements that would provide a more satisfactory amendment than that which at the moment is proposed by the Government, welcome though it is.

Baroness Young

The Government brought forward this amendment, as I promised at Second Reading, following an undertaking that we gave in another place, that we would table an amendment in these terms, and that we have done. I must confess that I was hoping that it would have received a welcome on all sides as we are meeting a point that was asked for. It is a matter of regret that it did not appear on the Marshalled List, although tabled some days earlier, but I am glad at any rate that it appears on the supplementary list and that everyone had an opportunity to know that at the first possible opportunity we had tabled this amendment.

Its effect will be to require area or district health authorities to inform the parent where they are of the opinion that a particular voluntary organisation is likely to be able to help the parent in connection with any special educational needs his child might have. The discussion which took place in another place was of course concerned with voluntary organisations quite particularly, because of course the statutory organisation will be aware. So that it is important to identify the need that we were trying to meet.

As the noble Lady, Lady Kinloss, made clear we are very aware of the support which voluntary bodies and organisations can give to parents. We recognise that this support can be particularly helpful for parents who have newly discovered that they have a child who is handicapped. We recognise that this is an important point, and we were therefore glad to table an amendment to meet this particular point.

It is always probably rather dangerous for Members of your Lordships' House who are not lawyers to talk about drafting. I will of course look at the amendment in the light of Lord Renton's remarks, but perhaps I might say to him that it would be difficult for the Government to accept his amendment. First, because it refers to "support organisations", which I am advised is not a suitable term to cover what at any rate everyone had in mind in another place and I thought in this place, because "support organisations" embraces both statutory services as well as voluntary bodies.

Secondly, because the Government believe that health authorities should be given more flexibility than this particular amendment would allow to meet individual circumstances. Parental needs will differ, as will the appropriateness of a particular local voluntary organisation, and we believe we should not be requiring health authorities to give parents information which might be irrelevant to their needs, or which might raise their expectations falsely in some particular way or other.

I believe that it is important to be flexible in all these matters. One of the aims of the Bill has been to get away from the rigid categories of handicap, from the rigid categories in which everything was determined in previous Acts of Parliament, and to try to implement in a legal framework the Warnock concepts. This we have tried to do. This particular amendment I have tabled has been at the request of many noble Lords and indeed many honourable Members in another place who were concerned that parents should be put in touch with voluntary organisations when they had first discovered that they had a handicapped child. This is something we accept entirely, and our amendment does that, and I commend it to the Committee.

Lord Renton

Would my noble friend care to comment on the point made in Amendment No. 61, and I think mentioned by the noble Lord, Lord Banks, about the desirability of a second notification?

Baroness Young

In all this—I think it is a point that will come up when we discuss the amendment of the noble Baroness, Lady Darcy—I entirely see Lord Banks' point that parents may be so unhappy at the stage when they first hear this that they may not fully understand it and may wish to come back. That is why we think the very formal approach of putting all this in writing and then repeating it in writing at a later stage is not really as satisfactory as someone speaking to them and discussing it with the necessary information. I hope in that way that we would in fact meet Lord Banks's point, which I do take.

Baroness Darcy (de Knayth)

I am grateful to the noble Lord, Lord Renton, for suggesting that we have a general discussion. I wish to stress straight away that I am delighted that the Government have tabled an amendment following the assurance in another place to try to do something on these lines. I had intended to say that I would be bold enough to suggest that Amendment No. 61 perhaps did a little more than either the amendment in the name of the noble Lord, Lord Renton, or the Government's amendment, but after Lord Renton's splendid speech I hardly need say anything in favour of it.

However, I agree with the noble Lord, Lord Lucas, that there should be a duty, in respect of Amendment No. 60A, to inform and that it should not be left to the opinion of the authority whether to inform the parents that the child may have special educational needs and draw their attention to a particular voluntary organisation. The Government amendment specifies advice or assistance in connection with any special educational needs that the child may have". I presume that wording is necessary because the Bill is about special educational needs and that it would be interpreted in the broadest sense possible. I am thinking, for example, of the very successful MENCAP parents' support group in Southend. Apart from initial early visiting if the parents wish, the parents come together for monthly meetings to discuss, for example, day-to-day problems, the importance of play, the use of toys and family management, and in particular the problems of siblings; the noble Baroness, Lady Faithfull, has often talked about the importance of the family. I hope the Minister can confirm that any help the relevant voluntary body could give in relation to the child and the education of his family would be interpreted as being "in connection with" his special educational needs.

The two points in favour of Amendment No. 61 have already been discussed at length; first, that the parents are to be informed of the whole range of statutory as well as voluntary services available—and I think Amendment No. 60 was more widely drawn in an attempt to cover that as well—and, secondly, that the authorities are to inform the parents, again in writing, after six weeks—as the Minister said, in some cases parents are too shattered to take things in initially. She said that perhaps it was better not to be informed just in writing, so perhaps it could be in speaking and in writing.

Baroness David

The Government amendment refers to "a particular voluntary organisation". What is the reason for that? Supposing there is no branch locally of the particular handicap that might be suitable to the parents of the child concerned. Would they be referred to the national body? What is the purpose of talking about" a particular voluntary organisation"?

Baroness Young

I can clear up that point immediately; it may be that there is not a local branch of a particular national organisation, and therefore it would be right to refer the parents to the national body itself. The amendment has been drawn in these terms for there to be a degree of flexibility. It would be difficult to ensure that every health authority would keep a comprehensive library up-to-date of every voluntary organisation and all its local branches. That is the sort of practical difficulty of which one must take account when drafting legislation, and that is one reason why our amendment is drawn in the terms it is. It would enable the health authority to put the parents either in touch with the local branch, where appropriate, or the national branch, or if there did not appear to be an appropriate organisation at all, then following the discussion with one of the members of the district team or with the health visitor, the parents may be given some other advice, so the amendment has been drawn in these terms to be as flexible and, we hope, as useful as possible.

Lord Renton

I am grateful for the support which has been given to the general principle underlying my amendment and the others. I am sure that untold parents in years to come would be grateful for that support if they knew because they will need support themselves, and as this is the 34th anniversary of my wedding, I would say as a parent that I too am grateful for that reason as well.

My noble friend Lady Young said there was no need to refer to statutory organisations, local or central Government bodies, because they already had a responsibility. Too true they have, but will the parents always know they have that responsibility? Will they always know to which of the various authorities they should turn for support? I very much doubt it. That was why, when in Amendment No. 61 that point was specifically spelt out, it seemed worthy of the Committee's attention. I take the point made by my noble friend Lord Lucas about the possible unsuitability of the word "suitable" in my amendment, which makes me lean towards Amendment No. 61 still more.

What are we to do? This is not a confused situation and I respectfully suggest that I am given leave to withdraw my amendment; that noble Lords should be persuaded to support the Government amendment for the time being; and that we should all come back to this on Report with two hopes in view, first that my noble friend Lady Young will consider both the drafting and the substance of the Government amendment and, secondly, that all of us will think of ways in which we too may possibly improve it. I beg leave to withdraw my amendment.

The Deputy Chairman of Committees (Lord Drumalbyn)

My Lords, is it your pleasure that the amendment be withdrawn?

Several noble Lords


Amendment, by leave, withdrawn.

Lord Wallace of Coslany

Referring to the other amendments and bearing in mind what the noble Lord, Lord Renton, said, it seems to me that there are varying views about the Government amendment. If there is to be reconsideration of the matter, I do not think we should give token approval to the Government amendment but that the Government should withdraw it temporarily—

The Deputy Chairman of Committees

Order. I am afraid that we must now pass to another subject in Amendment No. 59, and it will be open to the noble Lord, Lord Wallace, to make his remarks after that.

Lord Renton

I do not understand how that has happened. We could not pass on until I had withdrawn Amendment No. 58, and I was only just asking leave to do so.

The Deputy Chairman of Committees

I though I had put the Question and that permission to withdraw Amendment No. 58 was given. The procedure is that we next discuss Amendment No. 59, and then the noble Lord will be able to withdraw No. 60, if that is his wish.

1.8 p.m.

Baroness Faithfull had given notice of her intention to move Amendment No. 59: Page 8, line 23, at end insert ("and social services department").

The noble Baroness said: My noble friend Lord Renton drew attention to the fact that I had two friends in your Lordships' House, the Minister and the noble Viscount, Lord Ridley, and that I disagreed with them. They are still my friends, but I still disagree with them.

My noble friend Lady Young said this was an Education Bill. I agree it is, but I say and will continue to say that without the right home conditions it will not be possible for the child to be educated in school; that is, unless the home conditions are such that the child can continue to live there. Indeed, on Second Reading—the reference is at column 486—the Minister spoke about a spina bifida child. If a serious spina bifida child is to go to school, it must equally have the home adapted so that it can stay at home as well as go to school. However good the school, if the home is not equally adapted, the child will not be able to remain in the community.

Administering the Chronically Sick and Disabled Persons Act—I have administered it over a number of years—is very difficult and time-consuming. Home adaptation for a child takes a long time, and I think it quite necessary that in order to carry out its duties the social services department, as well as the education department, should be notified about handicapped children by the health department. If the community health physician dealing with handicapped children notifies the education department, that department then has to notify the social services department. That would probably happen in a very good authority, but often it does not happen. If the community health doctor simply sends a duplicate copy of the letter to the social services department that is not encroaching on bureaucracy, but is simply making for greater efficiency.

The social services departments have to plan nurseries and day centres. If they do not have the figures and other necessary information at an early stage—and I stress that it must be at an early stage—they will not have the wherewithal to plan services. It would seem a simple matter for the health people to send a letter to the social services department at the same time as the education department is notified.

I should like to consider further what the Minister has already said on this matter, and to read Hansard tomorrow. So for the time being I shall not move the amendment, but will consider the matter again at Report stage.

[Amendment No. 59 not moved.]

1.12 p.m.

Lord Renton moved Amendment No. 60: Page 8, line 23, at end insert ("and (c) inform the parent of the name and address of the nearest suitable support organisation which deals with the child's specific handicap").

The noble Lord said: In order to give the noble Lord, Lord Wallace of Coslany, an opportunity to say something I shall formally move this amendment, but I shall not speak to it, and I shall withdraw it as soon as possible. I beg to move.

Lord Wallace of Coslany

I am extremely grateful to the noble Lord, Lord Renton, for kindly giving me the opportunity to be in order. I had thought that the debate on the other amendment was continuing. I was fascinated by the debate on Amendments Nos. 60, 61 and 60A. Obviously there is considerable support for Amendment No. 61, on various grounds, some support for Amendment No. 60, and marginal support for Amendment No. 60A. I feel that if there is to be a reconsideration, the Government could easily take back their own amendment and discuss with their officials and advisers the substance of the other two amendments. The Government could then come forward on Report with a Government amendment which should more or less satisfy all points that have been expressed. I think that that would be a tidy way to deal with the matter, and I am trying to save the Government embarrassment, which of course is a very praiseworthy effort on my part.

Lord Renton

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Young moved Amendment No. 60A:

Page 8, line 23, at end insert— ("(2) If, in a case falling within subsection (1) above the authority are of the opinion that a particular voluntary organiisation is likely to be able to give the parent advice or assistance in connection with any special educational needs that the child may have, they shall inform the parent accordingly.").

The noble Baroness said: I beg to move my amendment. I must tell the Committee that I am really not in a position to withdraw it. The Government have very carefully considered this matter, because they recognised that there was a very real point to be met. They have brought forward an amendment which they have considered most carefully. I would remind members of the Committee that the amendment has been tabled now for some days, and that I took the opportunity to meet noble Lords so that we might discuss any points of concern, and none of these points was raised on that occasion. I recognise that it is appropriate to raise points at the full Committee stage, but if we are really talking about what I think we all agree are very serious matters regarding the conduct of the business, I think it not unreasonable that I should now feel that I cannot withdraw the amendment for further consideration. However, I shall try to clear up one misunderstanding about it.

There seems to be a misunderstanding that there is not a duty on the health authority. There is a duty on the health authority to get in touch with a voluntary organisation if it feels that the organisation is the appropriate voluntary organisation to help parents. This seems to be a clear-cut responsibility. The discussion in another place centred on voluntary organisations. The Government have fulfilled their obligation, and I think it would be quite wrong for me to withdraw the amendment at this stage.

Baroness Darcy (de Knayth)

I should like to say one or two words on the amendment, because I presume that if it is accepted, Amendment No. 61 cannot be called—

The Deputy Chairman of Committees

Amendment No. 61 could be discussed along with Amendment No. 60A, but Amendment No. 60A has been moved.

Baroness Darcy (de Knayth)

I hope it will be in order if I say a few words at this stage. I am sorry that the Minister does not feel that she can withdraw the amendment for the time being for consideration and then try to come back with a more effective and more acceptable proposal. As I said earlier, I very much appreciate that the Government have brought forward the amendment. I think the Minister will recall that when we had the meeting that she very kindly arranged I had not seen the amendment. It was only later the same evening that I studied the amendment and realised what I believe to be its implications. Can the Minister say whether there will be the broadest possible interpretation of the child's special education needs, as I asked earlier?

Baroness Young

I have no reason for supposing that there will not be. The suggestion is, for some reason that I do not quite know of, that the health authorities will take the narrowest possible interpretation of their duty and make for the maximum difficulty with the parents. I ask the Committee to consider the reality of the situation. After all, we are discussing what is a very distressing position. We are discussing parents who are very distressed because their child has been born with a handicap, and I am quite sure that the health authorities will want to do their best for the parents in relation to this Bill, as they do in other matters. Why should the health authorities not do that? What they cannot do is to put the parents in touch with the local branch of an organisation when in fact it does not exist. That is the reality of the situation regarding voluntary organisations. They do not necessarily have branches in every part of the country. Parents can be put in touch with the national organisation. I believe that that will be done, and I believe, too, that this point will be interpreted in the way that the noble Baroness wishes.

Baroness David

I hope that the Minister does not think that we are not grateful to her for having called the meeting the other day, since we are extremely grateful. It was very useful indeed. She kindly handed us the amendment, but I do not think that we really considered it in any detail, nor indeed along with the other amendments that were down on the same subject. So I am sorry that she will not withdraw it, but if she insists on moving it now, then at any rate we can endeavour to amend it at the Report stage.

Lord Renton

The last remarks of the noble Baroness are very important. We should keep this matter open. Speaking for myself, I never saw Amendment No. 60A until this morning, and so I hope that my noble friend does not think that we are in any way being churlish or ungrateful. She is right in asking us to add the amendment to the Bill now, but I say that entirely without prejudice to our returning to it on Report, and proposing amendments to it. I say yet again that she might well wish to consider whether her amendment is as perfect as it should be.

Lord Banks

I wonder whether I could say, very briefly, that I, too, welcome, as indeed I said a few minutes ago, the fact that the Government have brought this amendment forward, even although I prefer, for the reasons I gave, Amendment No. 61. I had not myself—and it may well be my fault—seen the amendment that we are now discussing until this morning, and this seems to have been somewhat similar to the experience of other noble Lords. That is the reason why we feel that perhaps some further consideration should be given to it, but, as the noble Lord, Lord Renton, said, that can still be possible at Report even though this amendment is accepted in its present form at this stage.

On Question, amendment agreed to.

[Amendment No. 61 not moved.]

1.22 p.m.

Baroness David moved Amendment No. 62:

Page 8, line 23, at end insert— ("(2) if an area or district health authority, in the course of exercising any of its functions in relation to a child aged from 5 to 19 forms the opinion that he has, or probably has, special educational needs, that authority shall notify the local education authority of its duty to provide full-time education under section 3 of this Act").

The noble Baroness said: The aim of this amendment is to try to ensure that children in hospital, or at home after being in hospital, are not missed and will get the appropriate education for their needs. Education while in hospital is the right of every child over the age of five. In England and Wales it may be provided either in hospital special schools, under Section 9(5) of the 1944 Act, or in other ways, under Section 5(6) of the 1944 Act, which enables an LEA to provide education otherwise than at school.

The nature of the educational provision in hospital is the product of the individual hospital, its patients, methods, history and geographical position. On any one day there may be in hospital over 18,000 children aged between 5 and 19. There are no recent figures to indicate what proportion of these children receive education while they are in hospital. NAWCH, the National Association for the Welfare of Children in Hospital, in their survey of hospital facilities of 1973, estimated that fewer than two-thirds of the wards admitting children provided any educational facilities.

There is a further group of children who are not receiving any education because they are dispersed in adult wards and their presence is unknown to the responsible education authority. Many of these children may be studying for public examinations, like the boy from York who this year was preparing for A-levels. No educational provision whatsoever was made during his six-week spell in hospital in Oxford despite representations by his parents.

In conjunction with the Thomas Coram Research Unit, NAWCH is investigating the provision of education for children in hospital, whether in adult or children's wards. Changes in the pattern of paediatric care have resulted in many children being admitted to hospital for short periods on a recurrent basis, rather than having to spend a long period there on a single occasion. When such children are discharged from hospital they may still be unable to return to school, like the 10-year-old boy in North London who was receiving treatment for a multiple fracture and was absent from school for almost four months. During each of his hospital stays he was taught by the hospital teacher, but while he was at home no provision was made for his continuing education.

NAWCH's experience indicates that many parents do not know that their children are entitled to receive education in hospital, and more particularly when they return home but may not be fit enough to go back to school. All such children and their specific circumstances are, however, known to the health authority which is providing their medical care. No one within the authority, however, has the specific responsibility to bring these children to the notice of the relevant education authority, nor to inform their parents that education is available. In such circumstances it is quite possible for children to have no education for weeks, or even months. In the absence of the relevant information regarding the possible availability of an educational facility other than in school, parents are thus prevented from fulfilling their statutory duty of ensuring that their child receives education.

The Warnock Report devoted a whole section to education in hospital and recommended: Arrangements should be made for all children to receive education as soon as possible after their admission to hospital". With regard to home tuition, the Warnock Report states: When a child has been discharged from hospital but is unable to return to school, the hospital and local education authority should invariably collaborate in good time to ensure that he continues to receive a suitable education without a break".

While recognising that this Bill does not alter duties imposed on parents and local education authorities by the 1944 Act, this amendment is an attempt to ensure that the provisions of this Act are fully implemented. If the Minister is unable to accept this amendment in its present form, can there be some assurance that the issue raised will receive full consideration and that relevant legislation will be formulated to take account of it? I beg to move.

Baroness Young

I fully understand the point that the noble Baroness has raised. Where a child has been admitted to hospital for treatment and is then discharged in order to receive further treatment at home or to convalesce before returning to school, it is important that he should receive education if he is well enough to receive it; and as a matter of good practice the school at which the child is registered should establish links with the child and the hospital staff, and also with the parents, and should be made aware of his discharge. It is then the reponsibility of the school to inform the LEA of the child's position (if indeed he is expected to be at home for any length of time, and not simply a matter of days) in order that the LEA may exercise their power under Clause 3 of the Bill to provide home tuition in conjunction with the school.

I recognise, too, the desirability that there should be education for the child while he is in hospital for a short time. I believe that the parents have a role to play in this area, although I can understand that their anxieties about a child's health may override their concern about his education. However, I believe that it is very important that there should be a strong link between the school and the hospital, the medical and the teaching staff, so that the child's education may be maintained, and the parents and the LEA.

In view of what the noble Baroness has said and of her concern, I will certainly ensure that guidance on this matter is included in any guidance that we issue after the Bill, and that it will deal with the whole question of communication and co-ordination between the services responsible for a child who has been admitted to hospital, both during the period of time when the child is in hospital and the period of time when the child has been discharged from hospital and may be convalescing at home. Both, I think, are important, and I will give that assurance on that point.

Baroness David

Having aired this, which I think is a real problem, and having had those assurances from the Minister, I will withdraw this amendment.

Amendment, by leave, withdrawn.

Clause 10 agreed to.

Clause 11 [Special schools and approved independent schools]:

Baroness David moved Amendment No. 63: Page 8, line 33, leave out subsection (2).

The noble Baroness said: I am seeking to delete this subsection because we believe that this clause is too restrictive and reduces the rights of a parent. The educational placement of a handicapped child is often based on a variety of factors, and it is often difficult to match the school precisely with the needs of the child. It seems a rather cumbersome machinery for a parent to appeal to the Secretary of State for a transfer, particularly if the parent has found an alternative placement. The existing school attendance laws are sufficient, and there is consequently no need to single out disabled children and others in special schools. The parents of disabled children in special schools should be under the same obligation as parents generally, and should not be discriminated against, as they are in this subsection.

The Secretary of State, in a letter to Alf Morris, said that the purpose of this subsection was to deter the bad parent from taking precipitate action to withdraw his child from a special school against the child's best interests, and this may be the Government's argument; but I do not think that we should legislate for the few bad parents. Most parents are only too anxious to do what is best for their children and in their interests. I propose that we delete this subsection. I beg to move.

Baroness Young

Subsection (2) is a re-enactment of Section 38(2) of the 1944 Act. The point that the noble Baroness has raised is that we are making an unacceptable distinction between the parents of children at special schools and other parents. I deeply regret that anyone should believe this is so and hope I can persuade noble Lords that our reasons for including this provision in the Bill are solely in the interests of the child and to protect the continuity of his special educational provision.

We should first remind ourselves that where in future a child is registered at a special school he will have been through a process of careful assessment, and will have a statement of his special educational needs and of the provision proposed to meet these needs. The placement will be with the parent's agreement or, where it is not, the parent will have been made aware of his right to appeal under Clause 8 before the child's admission. Bearing all this in mind, I think it is desirable that a parent should only withdraw a child from a special school, where he is settled and receiving the special educational provision he requires, after the LEA has had the opportunity to consider and judge the parent's case for withdrawal. It may be that the child's needs have changed and that, following reassessment, there are grounds for the LEA to cease to maintain or alter the statement made for the child; or it may be that the parent proposes other arrangements—perhaps private—for the child's special educational provision. It is, of course, important that the LEA satisfies itself that these arrangements are suitable. The parent has access to the Secretary of State if he is unhappy with the LEA's decision to refuse consent.

It is by no means the intention of this provision that a parent will be prevented from pursuing a sincere wish for an alternative placement for his child, or to enable the LEA to ride roughshod over the parent who has genuine grievances about his child's special school. The LEA must clearly find out why a parent has withdrawn his child from school or failed to let him attend regularly, before making any decisions about their further action. I understand that the existing provision in the 1944 Act has not occasioned any problems but has been useful with bad parents in deterring them from taking precipitate action against the best interests of their handicapped child. The provision has the advantage in such cases that the LEA can take immediate action under Section 39 of the 1944 Act where a child has been withdrawn by his parent, whether formally or by dint of letting the child's attendance lapse, without indulging in lengthy school attendance order procedures which might otherwise be used by the bad parent to damage, perhaps unwittingly, the best interests of his handicapped child. The existing provision has been very rarely used, but I should not like to see it removed from this Bill.

I hope that with what I realise has been a very full explanation the noble Baroness will understand why it has been written into the Bill and why circumstances that will surround the decision about the choice of school for a child with a statement will be particular to that child and therefore this would be an appropriate provision within his interests. I hope that the noble Baroness will withdraw the amendment.

Baroness Darcy (de Knayth)

May I say a few brief words in favour of this amendment? All the voluntary organisations and also the Advisory Centre for Education are very much in favour of leaving out this subsection because they feel that it is discriminatory. I should like to ask the Minister whether she does not feel that we ought to move forward from the 1944 Act, which was drawn up at a time when the policy was that if you were handicapped you should go to a special school, where possible, and only to an ordinary school where that was not possible. Now the whole process is reversed.

Baroness Young

Of course, I recognise—and I hope the noble Baroness does—that this Bill is a great advance or the 1944 legislation. We have done everything that we can to ensure that the parents are involved at each stage in all these procedures, including the appeal to the Secretary of State.

One has to recognise in legislating that whereas I am quite sure the overwhelming majority of parents will be fully involved in the arrangements and will be satisfied and will be doing all that they can to ensure that their child has the best education that is possible for it, inevitably there will be some parents who will not take this view. We have only to read accounts put out by other organisations, such as the NSPCC, to recognise that unfortunately there are such things as bad parents. It is simply a long-stop provision in those cases. It is not to be entered into as a first resort—on the contrary, I would hope very much it will not to be used at all. The evidence is that it has been used very little. One has to face the fact that we have handicapped children who may be handicapped children with bad parents, and, in the interests of the children, this provision should stay in the Bill.

Baroness David

The arguments are what I expected. I cannot say that I am very happy with the Minister's answer. I shall not withdraw the amendment.

On Question, amendment negatived.

1.36 p.m.

Lord Beaumont of Whitley moved Amendment No. 63A:

Page 9, line 10, at end insert— ("; and (c) the school undertakes not to permit teachers to administer corporal punishment to the child.").

The noble Lord said: I hope it will be for the convenience of the Committee for me to speak to Amendments Nos. 63A and 63B together. The purpose of the amendments is to ban the use of corporal punishment of handicapped children in schools. Putting it like that it sounds almost incredible that it has not been banned before and it is intolerable that there should be a need to ban it and that corporal punishment should still go on. It is absolutely incredible that there should be any opposition. Yet all these statements are true.

Perhaps I should make my personal position plain. I am opposed to corporal punishment on anyone on almost any occasion. I say "almost" because I do not believe that there are many rules except general ethical ones which are valid for every occasion everywhere. The general rule in this case is so near to generally applicable that it would be right to make it the law as it is in every European country with the exception of Ireland. If there is a strong case for banning corporal punishment in schools generally, there is an overwhelming—almost irrefutable—case for banning it against handicapped children. The fact remains that corporal punishment is used against handicapped children. Of course it is not used on a large scale. I would not wish in any way to try and exaggerate what the problem is. But there is much more than enough.

For instance, Essex which, like some other local education authorities, produces to its great credit statistics—and I am not holding Essex up to pillory it, I am just taking an example—recorded 23 canings in special schools in 1979–80. I have details of individual cases of handicapped children being corporally punished in distressing circumstances. I do not intend to harrow the Committee with them. I shall just assume—rightly—that all of us have imaginations, that we know that this practice goes on, that we all deplore it and all want it to stop.

We know that the noble Baroness, Lady Young, is against it. She said in the special Standing Committee in another place: I believe that the use of corporal punishment of handicapped children is wrong". If it is wrong, surely it ought to stop. If it ought to stop, it is probably our duty here and now today to stop it as soon as we have the opportunity.

Having said that, and having claimed, I hope not wrongly, that there is general support for the principle I have put forward, what are the objections to the particular amendment? If there are any no doubt they will come out in the debate, but I have been able to identify a couple. First, there is the old one which came up in the general debate on corporal punishment, about leaving it to the discretion of the professional expert, the teacher. The teacher, so the argument goes, is a trained professional and deeply aware of the problems of the children. No rule, I concede, is absolute and it can best be left to the teacher's discretion to choose what kind of punishment is needed.

I have spoken on education in this Chamber for 12 years now and have a high regard for the teaching profession as a whole; but the record shows that there is a small minority who, confronted with overwhelming pressures—and in this particular case let us remember the overwhelming pressures that there are on teachers in dealing with handicapped children—are not able to cope, who do make the wrong decisions and the wrong judgments and who would be helped by a ban on corporal punishment. It is a sad but understandable situation, and I think it is our job to see that the sadness of the situation is not taken out on the children, and particularly on handicapped children. That is the more general argument.

The second argument I have come across against this amendment splits into two. In this Bill we are trying to integrate handicapped children. That is the way the argument goes, and we accept it; but that does make it very difficult to differentiate between handicapped and non-handicapped children in ordinary schools. The argument says, first, that the teacher will not necessarily know in the heat of the moment in an integrated school who is handicapped and who is not. That is the first part of the argument. Secondly, it is said that if he decides not to beat a handicapped child because he is handicapped, that will be discrimination; and discrimination is one of the things we are trying to do away with in the Bill.

The first of those suggestions, that the teacher will not necessarily know who is and who is not handicapped, is bizarre in the extreme. Our education system will indeed have collapsed if teachers, even in the biggest schools, do not know enough about the children they are teaching in any particular class so as not to know the difference. Indeed, I should have thought that a decision to inflict any kind of corporal punishment, whatever view you take of what the law should be, is such a serious one that quite clearly no teacher would dream of either inflicting corporal punishment or ordering it to be inflicted unless he or she had gone absolutely thoroughly into the background of the case and of the child concerned. The whole basis of this Bill is that our schools are good enough and our teachers are good enough so that handicapped children can be integrated into the ordinary schools, and the argument I have quoted against my amendment goes totally against that supposition.

As for the question of discrimination and the suggestion that we are discriminating between handicapped and non-handicapped children, I think that was dealt with in another place in the same Committee when Mr. John Hall was a witness. He is the principal of a further education college dealing with spastics who are also educationally subnormal. He said succinctly in evidence: One of the main points of integration is supposed to be that pupils may begin to realise that others have different needs. In producing this Bill we are not saying that all children must be treated the same. I am sure the Government are not saying that, because if there is one thing which seems to me absolutely basic to Conservative views on education, it is that all children are different and have different needs and should be catered for according to those needs. That is the basis of the Conservative belief in the degree of selectivity—and how much more does it apply in a situation like this?

We must not discriminate against the handicapped, but there is no reason, in a very difficult situation like this where the dubiousness of using corporal punishment at all in schools is widely acknowledged, why we should not have some form of discrimination in favour of the handicapped. Ultimately, I do not think any children need to be beaten, but in the meantime I would settle for a recognition that handicapped children certainly do not. I beg to move.

Baroness Jeger

We wish to support this amendment very strongly. Because it has been moved so comprehensively and so ably by the noble Lord, I propose only to say that we completely endorse what he has said. I will save your Lordships' time by not repeating the arguments he has put forward, except to say that of course we look forward to the time when our schools will come into line with most European countries and forbid corporal punishment altogether. I have never been able to understand why our children are supposed to be naughtier than those of countries across the English Channel where corporal punishment in many cases has been totally forbidden. I do not think there is any evidence that it does the child much good, and certainly it does the teacher no good, especially in the prospect of a teacher beating a handicapped child. That must suggest something very unacceptable about the teacher.

I also think it upsets other children, because a perfectly good child might be very distressed if a mate of his who had been naughty is hit by a teacher. I know there is an argument that we should not divide these children into two lots, but within the confines of this Bill I am sure we shall be told by the noble Baroness that we cannot possibly legislate for the total abolition of corporal punishment in schools: that will belong to other legislation. I submit, however, that within the confines of this Bill, and in view of what we are attempting to do to improve the circumstances of handicapped children, we should make a start here with the children who are in special need. I am sure that that will be one step towards the total abolition of corporal punishment in our schools, and I for one will be very glad when that day comes.

Lord Alexander of Potterhill

It is obviously tempting to be utterly sympathetic to this amendment, but I noticed that both those who have spoken in support used the phrase"handicapped children". In fact this Bill deals with a great deal more than handicapped children. It deals with children with special educational needs: that includes a wide range of maladjusted children with major problems of discipline. This Bill may cover one child in five, according to all the estimates. So what we are saying here is that for 20 per cent. of all children who may be or may not be in ordinary schools corporal punishment is to be barred, but for the other 80 per cent. it remains in the discretion of the teaching profession. I am not disagreeing with the intention that handicapped children, as such, should not be punished, but I think that we should be a little careful in putting this into a Bill which may cover 20 per cent. of the children in our schools.

Baroness Young

I am sure the whole Committee has listened with very great interest to what the noble Lord, Lord Beaumont, has said in speaking to both these amendments. He has quite properly outlined the legal position concerning the use of corporal punishment and indeed the view that has been taken by the Government in this matter.

Whether we like it or not, we live under a devolved system of education. We have always, I thought, regarded this as one of the strengths of the education service. In fact, we have contrasted it with continental practice, where it is a centralised service in which the state, in some countries, lays down in very considerable detail what children shall learn and how they shall learn it—something which I should have thought the noble Lord, Lord Beaumont, as a Liberal, would not wish to see copied in this country. Yet he is proposing in this Bill without any discussion, so far as I can see, with local education authorities, with teachers or with anybody else who is involved, that we should insert into the Bill at this stage these two amendments covering something on which we both know there are very divided views. We have heard one expression of opinion from the noble Lord, Lord Alexander of Potterhill, who has had very considerable experience of this matter.

Because we live under this devolved system of education, the use of corporal punishment is a matter for the discretion of individual head teachers, in the light of the circumstances and in the light of individual cases. None of us sitting in this Committee can speak for every single individual case in every school in the country, because we do not know. We hear of some cases. We do not hear of other cases. The head teacher is responsible under the law to the governing body for the day-to-day administration of the school, including the maintenance of discipline. His discretion is, of course, subject to any guidelines laid down by the local education authority. But the governors are not in a position to police the operation of a school, or to oversee such matters as restrictions on corporal punishment. That is the legal position and the Government believe that, in our devolved system, this is the right and appropriate position to take on these matters.

We have all considered the question of corporal punishment and one of the things that one has to remember—and I think that the noble Lord said this —is that corporal punishment is used when there is great pressure on teachers. I have no doubt that this is the case. It is always worth reminding oneself that, even if we dislike corporal punishment very much, there are other punishments which are not corporal punishments and which can be meted out to children, but which can be equally objectionable. But at the end of the day—short of writing into the Bill a great many other things—we have to leave the whole question of discipline to the discretion of heads of schools, under the guidance of any guidelines which local education authorities may lay down.

I believe that it would not be appropriate at this stage to tackle this major subject. It is a fact that the two amendments which the noble Lord has tabled would have the effect of banning corporal punishment of children with special educational needs in maintained ordinary and special schools and in independent schools, but he has left outside of his amendments non-maintained special schools which are frequently used by local education authorities. I am sure that this is a matter which, had he recognised it, he would have put right, but it is a major technical defect of his amendments and they, therefore, do not achieve what he wants. But I hope he will feel having aired this point —I understand his view about it—and having had it discussed in the Committee, that he can withdraw the amendment, because it is a very big issue which is not appropriately settled in the Bill that we have before us today.

Baroness Macleod of Borve

I wonder whether I may intervene briefly in speaking against this amendment. I run across a lot of children with very great difficulties, which are the subject of amendments today, and it seems to me that those in charge must have the means to restrict, guide, or in any way deal with those in their care, without inhibitions of the law. Some noble Lords may not have had the, perhaps, doubtful privilege of themselves trying to cope with children who are not like other children. Nobody wants to lose his temper with the children and it is very rarely done. But if we put this amendment into the Bill, making it possible that anybody who, for example, slaps a child can be taken to court for that, in these particularly difficult circumstances, it will be restricting those who are doing their very best to look after the children in the best possible way. With my noble friend, I hope that the noble Lord will withdraw the amendment.

Baroness Darcy (de Knayth)

May I say a couple of words? I am not in favour of abolishing corporal punishment within the ordinary school system for children with special educational needs only, although I am in favour of abolishing it generally. But I wonder whether the Minister could indicate how she would look on an amendment applying to pupils in special schools only; or perhaps she might wish to think about how she might feel about it.

Baroness Young

This is a matter which raises a great many issues, both in special schools and in ordinary schools. It would be difficult to single out special schools, because the whole object of this Bill is to have integration wherever possible. As the noble Lord, Lord Alexander, said, the Warnock Committee has indicated that up to one in five may have special educational needs at some time and, therefore, for ever more, we should be isolating special schools from the others. It is a very big matter for debate. I recognise that corporal punishment is something on which people have very strong views, both for and against, but it would be quite wrong for me to give an assurance that the Government would look at this matter at a later stage.

Lord Beaumont of Whitley

I am very sorry about that last answer from the Government. I should have thought we had got somewhere today if, bearing in mind the reservations which some people have about ordinary schools, and about discriminating between the different kinds of pupils, we could, nevertheless, have gone away with some hope that at Report stage we could, at least, establish the case in special schools themselves, where there is no serious argument. But since we have had no encouragement from the Government and I do not wish to waste the time of your Lordships' House in future, by bringing back something which obviously stands no chance of being accepted, we must consider this amendment as it is on its merits.

The noble Lord, Lord Alexander of Potterhill, whose experience is so great, was pitching the problems a little high. As the noble Baroness quite rightly said, the Warnock Committee said that, at some time in their school career, one in five would have a particular problem of the kind that we are dealing with in this Bill. That is very different from saying that 20 per cent. of children in schools are likely to come into this category. It would be far lower than that at any one time.

I take the points that the noble Baroness made about the devolved system and about Liberals attachment to devolution. One of the major problems of noble Lords on these Benches is, quite often, the campaigning from Liberals in the country to get things put into Bills as national law. When you say to them,"But surely we believe in devolution. This should be left to local government or whatever it is". They say,"Yes, but not in this particular case". Having had to deal with that over a long period of time, I have come up with my own formula, which is that there is a level of what can be perhaps grandiloquently but nevertheless validly described as human rights which it is absolutely right to defend at the national level. Then as much as possible of everything else is devolved. I think that physical violence against handicapped children in our schools falls into that first category. Therefore, I as a Liberal make no apology for trying to put this into the Bill.

How many years will it be before there is another Bill into which a clause like this could fit as naturally as it does into this one? It is a Bill about the education of handicapped children. If we wish to make a change at any time, this is the time to make it. I cannot believe that the opposition to it, either within the professions or anywhere else, is other than very small. I suggest to your Lordships that we should take this opportunity to put these amendments into the Bill.

The noble Baroness rightly pointed out the faulty drafting of the amendment, for which I apologise. If your Lordships choose to put this amendment into the Bill now, I undertake to put the drafting right at the Report stage.

Baroness Faithfull

Before the noble Lord sits down, may I just say that although many of us do not agree with corporal punishment we are in an awkward position. I do not think that this is either the time or the place for this paragraph to be put into the Bill, for the reasons which the noble Lord, Lord Alexander of Potterhill, has given; that if we are to have integrated schools, how are we going to distinguish between a child who is handicapped and a child who is not handicapped? But that is not to say that I agree with corporal punishment.

2.2 p.m.

On Question, Whether the said amendment (No. 63A) shall be agreed to?

Their Lordships divided: Contents, 28; Not-Contents, 58.

Airedale, L. Hale, L.
Amherst, E. Henderson, L.
Aylestone, L. Jeger, B.
Banks, L.[Teller.] Jenkins of Putney, L.
Barrington, V. John-Mackie, L.
Beaumont of Whitley, L. Kilmarnock, L.
Bishopston, L. Leatherland, L.
Caradon, L. Llewelyn-Davies of Hastoe, B.[Teller.]
Collison, L.
David, B. Peart, L.
Evans of Claughton, L. Ponsonby of Shulbrede, L.
Ewart-Biggs, B. Underhill, L.
Gaitskell, B. Wallace of Coslany, L.
Gosford, E. Walston, L.
Grey, E.
Airey of Abingdon, B. Lawrence, L.
Alexander of Potterhill, L. Long, V.
Alexander of Tunis, E. Loudoun, C.
Ampthill, L. Lucas of Chilworth, L.
Belstead, L. Lyell, L.
Blake, L. Mackay of Clashfern, L.
Boardman, L. Macleod of Borve, B.
Campbell of Alloway, L. Mancroft, L.
Cathcart, E. Marley, L.
Chelwood, L. Mottistone, L.
Colville of Culross, V. Murton of Lindisfarne, L.
Cullen of Ashbourne, L. Nugent of Guildford, L.
Davidson, V. Orr-Ewing, L.
De Freyne, L. Plummer of St. Marylebone, L.
Denham, L.[Teller.]
Derwent, L. Portland, D.
Drumalbyn, L. Radnor, E.
Eccles, V. Renton, L.
Effingham, E. Renwick, L.
Elles, B. Richardson, L.
Ferrers, E. Ridley, V.
Gainford, L. St. Davids, V.
Gisborough, L. Sandford, L.
Glenkinglas, L. Sandys, L.[Teller.]
Gormonston, V. Selkirk, E.
Greenway, L. Sherfield, L.
Hives, L. Swinfen, L.
Home of the Hirsel, L. Vivian, L.
Hornsby-Smith, B. Young, B.
Kinloss, Ly.

Resolved in the negative, and amendment disagreed to accordingly.

Clause 11 agreed to.

[Amendment No. 63B not moved.]

Clause 12 [Approval of special schools]:

2.10 p.m.

Baroness David moved Amendment No. 64:

Page 9, line 38, at end insert— ("(5) Provision shall be made in the regulations to secure that—

  1. (a) the composition of governing bodies of non-maintained special schools shall conform, as far as is practicable, to the requirements of subsections (6), (7) and (8) of section 2 of the Education Act 1980;
  2. (b) each non-maintained special school shall have its own and separate governing body").

The noble Baroness said: This amendment aims to make non-maintained special schools have the same sort of governing bodies—each to have one and to have almost the same representation on them as in maintained schools. I had hoped not to have to bring forward this amendment because at Second Reading the Minister said, at column 983, that the Government had given a firm undertaking that non-maintained special schools would be required to have governing bodies, including parent/teacher representation, as a condition of their approval by the Secretary of State. However, there has been no sign of this amendment being tabled and therefore I have tabled this one.

I hope the Minister will be able to accept it because it seeks to establish an important point of principle in the Bill and to ensure adequate protection for children attending non-maintained special schools. There are a lot of these. We have 112 non-maintained special schools in England and Wales which cater for 82 per cent. of all blind children, 45 per cent. of deaf children and 32 per cent. of all handicapped children attending residential special schools. So we are talking about a very important category. These schools are almost entirely dependent upon public funds yet as the law stands at the moment they are virtually autonomous and may select their own governing bodies according to their trust deed under the 1959 regulations. A number have no parent governors and under present regulations teachers are not allowed to be governors. Not all even have local authority representative governors. This amendment seeks to bring them into line with special schools in the maintained sector.

The second part of the amendment, paragraph (b), would implement the Warnock Committee's recommendation that each special school should have a single governing body. At present the wording of the Handicapped Pupils at Special Schools Regulations 1959 is such that the governing body of a charity is deemed to be the governing body of each of the schools it administers. This means in principle that the number of schools which can be governed by a single central body is unlimited. This is an unsatisfactory situation. Without a governing body there is no protection for children faced with expulsion or suspension and no procedure to ensure that changes in the school not covered by the regulations are consistent with the needs of its pupils, many of whom are placed there and paid for by local education authorities. In the special and independent school sector handicapped children must be offered the same protection as children in ordinary schools, and this amendment suggests the line upon which the principle can be established. I beg to move.

Viscount Ridley

I should like to add my support to the noble Baroness, Lady David. I think this is something that the Association of County Councils felt was necessary and would be helpful and I hope that the Government can accept it in principle.

Baroness Young

As your Lordships will be aware, the Government are in full agreement with the principles of this amendment. During debates on what became the 1980 Act and during the Committee stage of this Bill in another place, we have made it clear that we want parents and teachers involved with non-maintained special schools to have as far as possible the same rights as their counterparts in the maintained sector.

However, it is not a straightforward matter. The 109 non-maintained schools vary considerably, not only in size and circumstances but also in the way they are established. Most involve charitable trusts, some of which have interests beyond the running of the school; a few are operated as limited liability companies and two are subject to Private Acts of Parliament. Before the Bill was introduced we looked in some detail at the way in which these schools are governed and we consulted the bodies maintaining them. We came to the conclusion that, if we were to achieve the objective of parental and teacher involvement, a variety of arrangements would be necessary to take account of the varying legal situations and that it would be impracticable to attempt to deal with all the complexities in primary legislation. It became clear that only by a system of individual approvals could we ensure that all schools got as near to the requirements of the 1980 Act as is practicable.

This is why we propose to use Section 12(2) of the Bill for this purpose. I need not remind noble Lords of the importance of the regulations made under Section 12, which empowers the Secretary of State to specify the requirements to be met by maintained and non-maintained special schools as a condition of their approval, or continued approval, as special schools under Section 9(5) of the Education Act 1944, as amended by this Bill. What we propose is that these regulations should include a requirement that arrangements approved by the Secretary of State exist for the involvement of parents and teachers in the running of each non-maintained school. We shall expect schools to make arrangements for the election of parent and teacher governors unless their individual circumstances make this election impracticable. The sort of circumstances I have in mind here include very small pupil numbers, in some cases as low as 30; a residential school drawing pupils from a very wide area; or a rapidly changing school population, as in some hospital schools. If it is impracticable, the school concerned will have to make other arrangements which ensure that the viewpoints of parents and teachers are available to those making decisions affecting the running of the school, for example by arrangements analogous to those permitted for hospital special schools under Section 2(6) of the 1180 Act. Difficulties arising from the employment of teachers by the managing trust, which relate to the general principles of trust law, will also have to be taken into account when schools seek approval of their particular arrangements.

I must emphasise that in adopting this approach the Government are not looking for an easy way out. My department has written to the bodies which are responsible for non-maintained schools to tell them in outline what will be expected. I have no doubt that many of them will find that there are considerable problems to be overcome if they are to retain their status as special schools. We will be involved in scrutinising all proposals to ensure that they are compatible with the general principles and that the maintaining body has taken all possible steps to bring its arrangements into line with the 1980 Act.

I hope, therefore, that your Lordships will accept that the Government are totally committed to the principle of parent and teacher participation in the running of non-maintained special schools and that the arrangements which I have described constitute the best way of putting it into effect. With the firm assurance that the regulations will be drawn up to include requirements as to the existence and composition of the governing bodies of non-maintained special schools, I hope the noble Baroness will feel able to withdraw the amendment to allow us a little more flexibility in deciding how we approach this difficult task.

Baroness David

I thank the Minister for a reply which I must say I find extremely disappointing. I think it is rather surprising that we had this commitment at Second Reading, less than four weeks ago, that the Government give a firm undertaking that non-maintained special schools will be required to have governing bodies including parent/teacher representation, and that they had not discovered already that it was going to be such a complicated matter. I would point out that my amendment says"as far as is practicable". I understand that it is suggested, in line with Clause 12(2), that the regulations will do something about this. May I ask the Minister whether we shall see the regulations before Report stage, because obviously that would have a great effect on what our action would be at Report stage. I do think this is rather an important point, and I should like an answer to it, if I may.

Baroness Young

I would not like the noble Baroness to think that I am going back on what I said. It is our intention to make these provisions under regulations. I went into some detail because this is a very complicated matter. I am afraid it would be impossible to show her draft regulations before the Report stage because we are still consulting and they still have to be drawn up. There is no disagreement in principle between us, but we believe that we could not achieve this in primary legislation, but only under regulations. I would ask the noble Baroness to wait for the regulations. There will be no delay, because no one wants delay in this matter.

Baroness David

The regulations apparently will not appear before we have finished with the Bill. If we do not have the Third Reading until October, will they be available by then?

Baroness Young

I would give a guarantee that if they are available I would certainly show them to the noble Baroness. However, as she will know, it is an unusual procedure to have all the regulations in draft while the primary legislation is still going through Parliament. Regulations follow the primary legislation. I do not think that there is anything unusual about that. If the noble Baroness reads what I have said and if she considers the matter, she will see that there really are some very complicated legal matters to be examined and it really would be inappropriate to write something into the Bill which does not make legal sense.

Baroness David

Of course I shall read very carefully what the Minister has said. Although I am not very satisfied at present, I shall, for the moment, beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

2.21 p.m.

Baroness David moved Amendment No. 65:

Page 9, line 38, at end insert— ("(5) Provision shall be made in the regulations to secure that, so far as practicable, it shall be a condition of approval as aforesaid that the like particulars to those provided for under section 8 of the Education Act 1980 shall be published for each school year by the like bodies or such persons as the Secretary of State may nominate. (6) Section 9(2) of the Education Act 1980 is hereby repealed.").

The noble Baroness said: I beg to move Amendment No. 65 and, at the same time, to speak to Amendment No. 66 because they really cover the same point. The effect of these two amendments is to ensure that parents get adequate information about the arrangements for special education in non-maintained special schools and independent schools by making the provision of such information a condition of approval under Clauses 12 and 13. The amendments seek to bring special independent schools as far as possible into line with the requirement for public sector schools to provide information under Section 8 of the Education Act 1980.

There are two points of qualifications. First, it would not be reasonable, we quite agree, to ask for all and precisely the same information that is required under Section 8 because some of it would apply to special and independent schools. Therefore, the words,"like particulars", are used and not the words,"in accordance with the provisions of Section 8". Secondly, the Secretary of State may nominate the person to provide this information. In the case of independent schools it would usually be the proprietor, and that allows flexibility.

In Committee and again on Report in another place the Minister gave an assurance that the provisions of these amendments would be included in regulations. At the Report stage the Minister said that in the conditions under which local education authorities can send children to independent and non-maintained schools, the Secretary of State will specify that information similar to that provided by maintained schools must be provided by the non-maintained and special schools. Therefore, all that these amendments are asking for is that provision will be made in the regulations. I imagine that perhaps the Minister can accept these amendments. I beg to move.

Baroness Young

Maintained special schools, non-maintained special schools and independent schools will be required to publish information annually as a condition of their approval and I think that it is important to recognise that. The regulations made under the 1980 Act cover the publication of information by local education authorities on their special educational provision and by individual maintained schools on the provision they offer.

The Education (School Information) Regulations 1981 were laid before Parliament on 1st May. Part II of Schedule 1 indicates that LEAs should publish their detailed arrangements and policies in respect of provision made in county, voluntary and special schools maintained by them for pupils with special educational needs, in schools maintained by other authorities, in non-maintained special schools, in independent schools and provision made otherwise than at school. Individual county, voluntary and maintained special schools must also publish their own specific information as set out in Schedule 2. I believe that this framework is fully comprehensive and should ensure that parents are in no doubt about their LEA's provisions.

As promised in another place, we have looked again at the provision of information by individual non-maintained special schools and independent schools catering for children with statements. We now propose that the production of such information will be a condition of their approval under the regulations made under Clauses 12 and 13 of the Bill. The regulations will require them to produce information on their facilities and curriculum and to make that information available to LEAs and parents upon request. I hope, therefore, that that meets the point that was made by the noble Baroness.

Baroness David

I think it does. I think that it is a satisfactory assurance, but of course I should like to read it in Hansard tomorrow. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 agreed to.

Clause 13 [Approval of independent schools]:

[Amendment No. 66 not moved.]

Clause 13 agreed to.

Clause 14 agreed to.

Clause 15 [Proposed school attendance order: choice of school]:

[Amendment No. 67 not moved.]

Baroness Faithfull had given notice of her intention to move Amendment No. 68: Page 11, line 40, leave out ("or the efficient use of resources").

The noble Baroness said: When I set down this amendment at the very beginning I had not studied what local authorities were at present spending on their children in the sector of special educational needs. I find that despite these hard financial times local authorities have maintained their spending on meeting special educational needs of children, and in the light of the sympathetic way in which this Bill has been received and the fact that local authorities have not cut back on spending, I shall not move this amendment.

[Amendment No. 68 not moved.]

Clause 15 agreed to.

Clause 16 agreed to.

Lord Vaizey had given notice of his intention to move Amendment No. 69:

Before Clause 17, insert the following clause:

("National Advisory Committee.

. 1(1) The Secretary of State shall establish a National Advisory Committee on Special Educational Needs to act as a consultative and advisory body and to report annually to the Secretary of State according to the following terms of reference—

  1. (a) to consult with the Departments of Education and Science, Health and Social Security, Employment and other relevant agencies to ensure the proper co-ordination of special educational provision at national and local level;
  2. (b) to advise and consult with local education authorities on the provision for meeting special educational needs within their area with particular regard to the best deployment of existing services;
  3. (c) to issue guidelines on the provision for special educational needs and gather and disseminate examples of good practice;
  4. (d) to monitor the working of this Act.

(2) The Secretary of State shall lay the report of the National Advisory Committee before both Houses of Parliament.

(3) The Secretary of State shall appoint members of the Advisory Committee.").

Baroness David

I added my name to this amendment which the noble Lord, Lord Vaizey, tabled and he did not, in fact, let me know that he would not be here today. Although I have an absolute mass of material on this and could talk for at least 10 minutes, it might be more convenient for everybody if I did not move it now and left it to the noble Lord, Lord Vaizey, to move on Report, when I hope that he will be here.

Lord Alexander of Potterhill

I am very sorry that the noble Baroness, Lady David, has decided that this amendment should not be moved at this stage. I had hoped that it would be moved and discussed at some length. With the leave of the Committee, I am prepared to move it if that is permissible.

The Deputy Chairman of Committees (Lord Aylestone)

That is permissible.

Lord Alexander of Potterhill

I beg to move Amendment No. 69. I raised this question during the Second Reading debate. Most of this morning your Lordships were conscious of the real problem of effective coordination and co-operation by the different services that would be involved in meeting the problems of the educational needs of these children. Frankly, I know of no means—unless a committee of this kind is set up —in any way to monitor that co-ordination. We are dealing with two services which in most cases are the responsibility of one local authority, a third service which is not a responsibility of the local authority, and probably a fourth service, for which the local authority has no responsibility whatever. I cannot find any person or group of persons who can effectively contribute in any way to this co-ordination.

Her Majesty's Inspectors have some responsibility relating to the education service, but none relating to social services or to health. Indeed, I do not think that the Secretary of State himself can ensure this coordination. It looks to me as though the only hope we have rests in the Prime Minister, who would be the only person who could, in fact, ensure that there was co-ordination at national level, and even then would find it extremely difficult to ensure effective co-operation and co-ordination at local level. It was for that reason that representatives of the different professions got together in the Warnock Committee and were unanimous in this as an essential recommendation. Frankly, without this amendment the general impression would be left that the Government do not necessarily think that this Bill will work very well, because without effective co-ordination and co- operation between the services it will not work very well. This is the reality.

I very much hope that the noble Baroness, Lady Young, will accept this amendment. I do not expect that she will for a moment; she will call it one of these Quango bodies and say we have too many of them. If she had listened to them in years gone by, some of them could have saved the present Prime Minister a great deal of trouble relating to the supply of teachers and the unemployment which followed from her refusal to do so. Alternatively, she could give the Committee an assurance that there will be strong reference to this need in any guidance which may be issued under the Bill when it becomes an Act; the greatest possible pressure to ensure effective co-ordination, without which the Bill will fail. I beg to move.

Lord Renton

I regret to have to say to your Lordships in the presence of the noble Lord, Lord Alexander of Potterhill, that I am strongly opposed to this amendment. He has based the case on the need for monitoring and co-ordination, but those are responsibilities which in any event fall, or should fall, upon Government departments, and to have to write into the Bill a new Quango of this kind would be an admission of the failure of government. But I have other reasons for opposing it. First is that the money which a Quango would cost could be much better spent in various other ways. Apart from that, we at MENCAP do not want a body of this kind. At present we have direct access to Ministers and officials in the DES and in the DHSS, and we have excellent cooperation from them. We feel that if we have a national advisory committee it could become "an iron curtain" between us and the Ministers of those departments, and we do not want it.

One often finds when you have statutory advisory bodies of this kind that departments use them as an excuse for delaying discussions with those who are concerned, and even as an excuse for delaying decisions, "because", they say,"if we have an advisory body it would be wrong and discourteous not to wait for their advice". Incidentally, the advice that they give is nearly always based on information which the Government department has to feed to them, so the Government department might just as well form its own opinions.

Viscount Ridley

Is it not also true that the Government have power under the 1944 Act to appoint such a Quango? That was enacted quite a long time ago. The Government have never seen fit to introduce this power, and therefore there seems to be no need for the amendment anyway. I strongly oppose it.

Baroness David

As the noble Lord, Lord Alexander, has moved the amendment, of course I shall rise to support it. I am surprised by Lord Renton's intervention, because every voluntary organisation except the one that he is involved with is keen to have this body. I really think that is true. Mrs. Warnock only two or three weeks ago, speaking at a conference in Oxford, begged yet again that this should happen. She described: A collection of experts giving their services voluntarily with minimum central support and servicing. The function of such a committee would be to advise Ministers from an independent and, above all, cross-departmental standpoint". She said she had written to Mr. Mark Carlisle but had met with a negative response: He replied saying that all the functions I envisaged were the business of the department. But they are not. They are the business equally of those involved with other professions than the teaching profession, and no single Government Department can involve itself in all the issues at stake". She went on: Collaboration between different professionals and between professionals and parents, which is at the very heart of our Report, will not just happen. The point of the Committee would be to devise ways to make this collaboration real. … The Advisory Committee, if it had been set up, would have been the focus for both thought and action. Without it, perhaps all we can do is to work together voluntarily and constantly plague and goad both local and central government when we think they are slipping back from their promises". I hope that the noble Lord, Lord Alexander, will not press the amendment because it is important and we might do rather better on Report, although I feel strongly about the matter and support what he said.

Baroness Faithfull

I support the spirit of the amendment but I am not sure I support its structure. The Committee will recall that I moved Amendment No. 13 in which I begged that the Bill, when it becomes an Act, should be monitored because, as I pointed out, we have suffered in the past from passing legislation which had not been monitored. Therefore, while agree with the spirit of the amendment, I could not support it because I am not sure that I agree with the method proposed in it.

Baroness Young

I am grateful for the speech of my noble friend Lord Renton, who summed up the situation very well and I am sure that it will pay re-reading in Hansard what he said. I confirm that it is possible at any time to establish an advisory committee and that there is no need to write it into the Bill. An advisory committee on special education existed for more than 20 years prior to the establishment of the Warnock Committee. The Government have not set their face against the re-establishment of an advisory committee in the future, but we do not require specific powers in the Bill to do that. We take a general view on the undesirability of establishing new Quangos, but we recognise that many voluntary organisations are concerned, and that Mrs. Warnock herself has been very concerned about this matter.

We are proposing to arrange a conference of voluntary bodies to discuss the implementation of the Bill. Outside advice has been valuable in the past and we believe that such a conference, after the enactment of the Bill, would be useful in two respects: it would provide a forum for an exchange of views on how the new procedures should operate and how external views on a range of future issues might most readily be co-ordinated. I am sure that will be valuable, and I will shortly be consulting voluntary organisations about the timing and venue of a conference, which we expect to take place in the early months of 1982.

I indicated at an earlier stage that guidance on the Bill would include guidance on the importance of co-ordination, a point which the noble Lord, Lord Alexander, made clear. But at the end of the day, the way this Bill operates will depend very much on how it operates at local level. Governments cannot make that happen with that degree of good spirit, goodwill and good practice which is required if it is to be successful. I hope therefore that the noble Lord will not press the amendment and will feel that with those reassurances he will not need to raise the matter again on Report.

Lord Alexander of Potterhill

I am grateful to the Committee for allowing this matter to be raised today. In view of the assurances which the Minister has given, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 agreed to.

Clause 18 [Powers of Secretary of State as to medical and other examinations]:

On Question, Whether Clause 18 shall stand part of the Bill?

2.40 p.m.

Baroness David

I propose that this clause be left out. The Notes on Clauses explain on Clause 18 that the provisions of Section 69 of the 1944 Act give the Secretary of State power to arrange for the medical examination of any child. It is stated that the power has almost fallen into disuse, but that nevertheless it remains necessary to enable the Secretary of State to determine a range of other issues which might arise under the principal Act; it does not state what issues. Apparently however it will not do service for the purposes of this Bill and therefore we have the provisions of paragraph 1 of Schedule 1, which means that assessments of special educational need children are based on medical, psychological and educational advice.

The notes state that it is therefore possible that the Secretary of State may require to arrange for medical and other examinations and this clause provides him with such powers. To me this seems very heavy-handed and unnecessary compulsion. The balance is against the parent. The Bill seems always to be legislating for the few, very few, bad parents. The vast majority of parents will of course do what is best for their child. I think that a fine is completely inappropriate in these cases, and I really dislike it very much indeed. If a local authority is really anxious about a child, it has care proceedings to fall back on.

I was interested to read a BMA comment about attendance at examinations. The BMA paper stated: This clause enables the local education authority to serve a notice on the parent of a child requiring the child's attendance for examinations. This seems to imply that decisions may be taken on the future educational placement on that one examination. It is important to emphasise that this assessment will require more than one visit and the views of a variety of other disciplines. Failure to submit a child for assessment should not be a criminal offence but might be a cause for consideration on care proceedings".

Baroness Young

I felt in a sense that the noble Baroness had answered the question that she had posed, by quoting from the Notes on Clauses, and I do not want to sound repetitive at this stage of the afternoon. But under the provisions of Section 69 of the Education Act 1944 the Secretary of State has the power to arrange for the medical examination of any child. This power was used in connection with appeals from parents and although with changed procedures it has almost fallen into disuse for this purpose over the past 15 years, it remains necessary to enable the Secretary of State to determine a range of other issues which might arise under the principal Act. It will not however do service for the purposes of this Bill. Under the provisions of paragraph 1 of Schedule 1, LEA assessments of special educational needs will be based on medical, psychological and educational advice. It is therefore possible that in order to determine an issue arising under the Bill the Secretary of State may require to arrange for medical and other examinations of the child, and this clause provides him with such powers.

As the noble Baroness has said, it is there as a longstop against the bad parent, and we have recognised that there are bad parents. I am not necessarily sure that I would agree with the noble Baroness that if there is failure to submit a child, he should be taken into care. I think the general presumption is that children should not be taken into care except only as a last resort and that it would be better to have this provision about the medical examination. I believe that reflecting on these matters we have got the point right. I think it will be only a very small number of parents to whom the clause might apply, but unfortunately, as we know from reports of organisations such as the NSPCC, there are bad parents. There are some parents who will not take their children for medical examinations and there will be a very few cases where the provision will be necessary. I think it right to include it in the Bill.

Baroness David

I should like to point out that I do not want the children to go into care. I meant that only as a final possibility in very difficult cases. I am not altogether happy about what the Minister has said; I think that the balance should be the other way. However, at this stage on a Friday afternoon I do not think it is worth pressing for the deletion of the clause.

Clause 18 agreed to.

Clause 19 agreed to.

Clause 20 [Interpretation and commencement]:

[Amendment No. 96A not moved.]

2.45 p.m.

Baroness Jeger moved Amendment No. 70: Page 14, line 1, leave out from ("on") to end of line 3 and insert ("1st September 1982").

The noble Baroness said: I beg to move Amendment No. 70, which suggests that the date of the implementation of this Bill as an Act shall be 1st September 1982. Your Lordships will have observed that in the Bill as it stands it says: This Act shall come into force on such date as the Secretary of State may by order appoint and different dates may be appointed for different provisions or different purposes". We do not think that this is satisfactory. I much regret the suggestion that the legislation should be brought in piecemeal, and I very much regret, too, that no date at all has been set. We may not have got the date right, but I think it would be a very good thing if some date were fixed.

I know we shall be told that it is a question of when the country can afford it, but this is a question of priorities. If you give two housewives the same amount of housekeeping money, each can spend it very differently; and we believe that the implementation of this Bill should be one of the priorities within the present difficult situation. I was encouraged to put this amendment down by looking back at what happened to the 1976 Education Act. That was the Act, if I may remind your Lordships, which gave effect to the principles of comprehensive education. That Act came into force on Royal Assent except for Section 10, which has still not been implemented—and that is from 1976.

What did Section 10 set out? Section 10 was a section of the 1976 Act which was to give priority to educating handicapped children in county and voluntary schools rather than in special schools; so the proposal which we are discussing in this Bill was actually included five years ago in the 1976 Act, and nothing was done about it. Is there anyone in this Chamber who wants the children we are talking about today to wait another five years? Of course, the section of the 1976 Act that I am talking about, Section 10, is repealed by the present Bill because it has fallen into complete disuse. It may be that we have a better Bill today because the Warnock Committee has sat in the interval. But I quote this example to illustrate the danger of this open-ended legislation which gives no date-line for implementation.

It is also not helpful to local authorities, and I hope that no noble Lord will get up and say that we must let local authorities have plenty of time, because certainly I found as a member of a local authority that there is nothing which so concentrates and invigorates members of local authorities and their officers than to have a sort of vesting day towards which to work; and it is certainly not true to say that by leaving dates unmentioned we are helping local authorities. There will be a lot of long-term planning to be done under this Bill, and it is absolutely essential that local authorities, when they are doing their budgeting and making their proposals, should have a calendar framework within which they can work.

If I may quote another example, we still have not implemented all the provisions of the Education Act 1980. That received the Royal Assent on 3rd April 1980, and, there again, sections are coming into force on a variety of appointed days, which is confusing and, I submit, inefficient. In fact, there was one proposal in that Bill, the 1980 Bill, which was absolutely central to the Conservatives' propaganda in the last election. That was the section which provided for the right of parental preference about admission to schools, and appeals against refusal. None of this is yet in force, just because the 1980 Bill, like this Bill, suggested that everything could wait until the Minister thinks it is convenient to announce the date and bring in an order.

I could go even further hack, to the Education Act of 1944. That received the Royal Assent on 3rd August and the appointed day for Parts I and V was on Royal Assent; for Parts II and IV it was in 1945. Part III, by order, did not come in until 1957. When one thinks of the circumstances of the country in 1944 and 1945 and the vision and boldness which was needed to pass what we usually call with great courtesy —and quite rightly—the Butler Act, it seems to me quite pusillanimous for us to be saying today that we have no idea when this Act will be put into force and when we are going to carry out any of the provisions of the Warnock Report.

Children grow while we are talking. Every year that is lost might permanently affect the future of the children that we are talking about. I wonder how many children would be living different lives today if Section 10 of the earlier Act had been brought into force when it was passed five years ago, instead of which those children have been left in limbo five years. I want to know how much longer they will have to wait.

If it sounds as if I am being ambitious, I suppose the most monumental Education Act of all was the Forster Act 1870 because that established the principle of public elementary education. Maybe this Government should take an example from the time of Forster because that Act came into force on receiving Royal Assent in August 1870. Goodness knows! that confronted authorities with an enormous amount of work because they had to begin the structure. It required school boards to be established all over the country and funds to be raised out of rates for the first time for this purpose.

Then we get the Education Act 1902 which transferred the duties of school boards to local authorities for the first time and empowered them to provide education other than elementary education. That was an enormous challenge to the local authorities. That received Royal Assent on 18th December 1902. The appointed day, I emphasise, was 26th March 1903, just a few months; but there were some exceptions. That part which was not brought in on 26th March 1903 had to be brought in on a day or days to be appointed by order not later than 18 months after that date. I feel that if the Government could write into this Bill some such proviso—if they do not want to put in a definite date—that will at least reflect some sense of urgency. If it could be done in 1902 I should have thought most Conservatives would have thought that it was possible to do it in 1981.

I was a member of a local authority in 1948 when the Children Act was passed. That Act was based largely on the Curtis Committee report, much as the present Bill is based on the Warnock Committee's report. We on local councils felt at the time that we were given a very short interval to get to work on this; but it did us nothing but good. Most officials who are conscientious and interested in their jobs are glad of this type of challenge. Nothing is more demoralising to officials of committees than to have papers brought before them about which they are told that there is no date. The result is an inclination to do nothing because there is always something else to do. There is always another chief officer who wants the money for something else, or some other problem demanding attention.

There was a similar position over the National Health Service Reorganisation Act, 1973. At least some sections of that Act came into force on Assent, so although it may be unusual for us on this side to be quoting precedents in argument, I do submit that there is every reason why, to make this Bill effective, some time-scale should be introduced. if I have got the wrong date I will gladly give way to another one, but I hope that the noble Baroness can give us at least some indication: otherwise I think we shall have wasted a lot of time on this Bill.

Baroness Young

We all want to see this Bill brought into effect and I hope we have all said enough during these proceedings in order for that to happen. One reason why I cannot accept the amendment is that we do not wish to be tied to a date on the face of the Bill and I am already exploring the possibility of bringing in some provisions into force earlier than September 1982, which seems to me a most desirable outcome.

I can assure the noble Baroness of our good faith in this matter. We said in a statement in March 1980 that we would be bringing forward a White Paper on the Warnock Committee. We brought forward the White Paper in August and we published this Bill in the following January. No one can say there has been any delay. We are as anxious to see it on the statute book as the noble Baroness, but it does require the bringing into force of regulations and she would be the first to want to have the guidance on the subject matter of so much of our discussions. All these matters have to be settled and, not least, we must discuss with our partners in the education service the details of the timing, but I can assure her there will be no unnecessary delay if she will withdraw her amendment. I would hope that parts of it would come in before the proposed date.

Baroness Jeger

What the noble Baroness has said is exactly what the Minister said in 1976, when we waited for five years while nothing happened. I am pleased to hear from her that, on the other hand, she hopes to bring in some of these provisions before my modest date of 1st September 1982. I assure her that we shall keep a very close watch on the bringing in of such regulations before that date, and with this in mind, for today at any rate, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 agreed to.

Clause 21 agreed to.

Schedule 1 [Assessments and statements of special educational needs]:

Baroness Darcy (de Knayth) moved Amendment No. 71: Page 15, line 24, leave out ("requiring") and insert ("requesting").

The noble Baroness said: The purpose of this amendment is to remove yet another element of compulsion which is at present upon the parents of handicapped children. It is very much in line with the amendment moved by the noble Baroness, Lady David, to try to remove Clause 18. I feel that compulsion is really not in the best interests of the family and still less of the child. There is something rather odd in the wording of this provision, and perhaps the Minister can explain it. I would draw your Lordships' attention to line 23, that is the line before my amendment, because Clause 5(4) on page 4, line 42, says that the LEA have a duty to make an assessment of a child if, after any representations have been made, they still consider it appropriate. Yet in the paragraph we are discussing, page 15, line 23, the wording is that they "may serve" a notice on the parents of the child to be assessed and requiring the child's attendance for examinations. Surely if there is a duty to assess it follows that they have a duty to ask the child to be present. Perhaps the wording in lines 23 and 24 should be "shall" and "requesting" instead of "may" and "requiring". Perhaps the Minister can enlighten me on this, and meanwhile I beg to move the amendment as it stands.

Baroness Young

Schedule 1 is deliberately worded in its present form once again to deal with the case of bad parents. LEAs must be able to demand the attendance of children for examination; otherwise they cannot discharge their duties and identify and assess children with special educational needs, as they must under other provisions of the Bill. It is, as it were, the other side of the coin of Clause 5, to which the noble Baroness made reference.

This part of Schedule 1 will be used by LEAs only in cases where the co-operation of parents is not forthcoming—something which we all acknowledge will happen rarely—and where the LEAs believe that the child's best interests are being neglected. That is the reason for it.

Viscount Ridley

I would support my noble friend Lady Young. I am sure that the local education authorities would much prefer to see the wording as printed in the Bill and not as in the amendment.

Baroness Darcy (de Knayth)

I should like to thank the Minister for her reply. I have now grasped the significance of the word "may". I thank her for putting me right. I am still not happy about the element of compulsion, but I do not see much point in having a Division at this hour of the day. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 72 and 73 not moved.]

3.1 p.m.

Baroness David moved Amendment No. 74: Page 15, line 38, leave out sub-paragraph (4).

The noble Baroness said: Sub-paragraph (4) provides for penalties for parents who fail, without reasonable excuse, to comply with the requirements of a notice of assessment and parents can be fined up to £50. This compulsion—this is in line with what I said earlier on Clause 18—to produce a child for assessment is totally inappropriate. Compulsion is likely to affect adversely the relations between child, parents and professionals and, if compulsion is necessary to have a child assessed, the parents are unlikely to be happy with any decision resulting from the assessment, if it is not in accord with their wishes. Compulsion helps nobody.

Moreover, there could be grave consequences if a parent is fined £50 and refuses to pay the fine. It could lead to imprisonment with the child, therefore, being taken into care. Those most likely to fail to comply are probably those least able to afford the £50. Few parents would prevent their child from having special provision to overcome problems. A named person or an adviser to the parents would be able to explain the reasons for an examination and allay any fears they might have. I feel very anxious about this provision for a fine. It is dangerous and very unsatisfactory indeed. I beg to move.

Baroness Young

Once again, this is a re-enactment of the existing provision in the 1944 Education Act, which relates to medical examinations. The only change which has been made is that the amount of the fine has been increased in line with penalties for comparable offences. Again, it is a provision which is rarely used, but we believe it to be necessary because there will, inevitably, be some bad parents. Indeed, we have frequently seen in the Sunday newspapers examples of such cases of abuse or bad parents. When LEAs encounter this type of parent, who is preventing the assessment of his child with special educational needs, they must have a power of enforcement, unless we are prepared to see such children deprived of the help they may need. Such a power would not, of course, be used unless it was necessary, but it must be backed up by the possibility of a penalty for noncompliance. This is the justification for the subparagraph, which I accept may, at first sight, appear harsh, but which is necessary in the interests of the child.

Baroness Darcy (de Knayth)

I should like to say a few words in support of this amendment, too. While I am in favour of leaving out this whole sub-paragraph, I notice that during the Committee stage of the Education (Scotland) Bill the noble Earl, Lord Mansfield, speaking to an amendment similar to this one, said in col. 1160: I am bound to say, when one reads the clause, that it may be too rigidly expressed. Later he said— I therefore propose to consider an amendment for Report to establish that the machinery of compulsion, if I may so call it, will not be set in motion unless there has been a failure on the part of the parent and that failure has been without reasonable excuse."—[official Report, 14/7/81.] I wonder whether the Minister might be able to give a similar undertaking. She will notice that Amendment No. 75, which was drafted a great deal earlier than the time when the noble Earl, Lord Mansfield, made that comment, reflects this thinking. I wonder whether the Minister could indicate whether she might accept Amendment No. 75, if not Amendment No. 74?

3.5 p.m.

Baroness Young

We are not discussing Scottish legislation. We are discussing a Bill which applies to England and Wales. The noble Baroness is as well aware as I am that the law in Scotland varies somewhat from the law in England and Wales. The noble Baroness has been as anxious as anybody for parents to have the right to an assessment and for local education authorities to have their notice drawn to handicapped children so that they can make an assessment of the special educational needs.

This is the other side of the coin: where there is a need to have an assessment but the parent will not bring the child to have an assessment made. That is what we are talking about. We are not talking about the generalities of other cases. Before it ever gets to the stage of refusal by the parent, there will have been all the opportunities for consultation and discussion with all those involved, beginning with the health authority notifying the parents about voluntary organisations, all of whom no doubt will explain to parents why they should take their child for an assessment.

If at the end of the day the parent refuses to take the child for an assessment, what is the local authority to do? It could say, "Very well; we will not trouble with the child. We will leave it". However, it would then be failing in its duty under other parts of the Act. There must therefore be a provision against parents who refuse to take their child for an assessment. If there is a reason, perhaps a deeply-held religious conviction, perhaps a deeply-held other conviction of conscience of one kind or another, that is a matter which the local education authority must reasonably take into account when going through its procedures about assessment. However, that does not in any way invalidate what could well be the case of a vexatious parent who will not take the child for an assessment but where the local authority would be under a duty to make that assessment.

Baroness Darcy (de Knayth)

If the noble Baroness says that there are cases where it might be reasonable not to comply, would it not be best to write into the Bill the words, "fails without reasonable excuse"?

Baroness Young

That is exactly what paragraph (4) says: Any parent on whom a notice has been served under this paragraph and who fails without reasonable excuse …". That is exactly what it means. Under those circumstances, it is unnecessary to write any more into the Bill.

Baroness David

I still do not like it at all. I think that probably it will be counter-productive and will not achieve the aim that is wanted. However, I shall read what the Minister has said. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness David moved Amendment No. 75:

Page 15, line 38, leave out sub-paragraph (4) and insert— ("(4) If any parent on whom a notice has been served under this paragraph fails without reasonable excuse, or declines, to comply with any of the requirements of the notice, the local authority may apply to the Secretary of State to determine whether the notice should be enforced. The Secretary of State may—

  1. (a) direct the local authority to withdraw the notice, or
  2. (b) direct the local authority to amend the notice, or
  3. (c) direct the local authority to serve a further notice notifying the parent that if he fails without reasonable excuse to comply with any requirements of the notice already served on him, he shall, if the notice relates to a child who is not over compulsory school age, be guilty of an offence and liable on summary conviction to a fine not exceeding £50.").

The noble Baroness said: This is an alternative to the previous amendment which I hope the Government might feel able to accept. It softens a little the compulsion. Compulsion is inappropriate and is likely to affect the delicate relationship between professionals and parents. The process of examination, testing and so on can be disturbing and should not normally be initiated without the active support and involvement of the parents. The BMA recommend the removal of the element of compulsion. This amendment allows for the intervention of the Secretary of State in those few cases where parents feel they have good reasons for opposing an assessment. I hope that this amendment, which is a kind of halfway house, will be accepted by the Government. It still keeps in what I do not like, which is the fine.

Viscount Ridley

It seems to me to be quite unnecessary to introduce the Secretary of State. This is quite squarely the responsibility of the local education authority, and should remain so. To introduce the Secretary of State is bound to create not only delay but extra expense. I hope that the Government will resist the amendment.

Baroness Young

I agree entirely with the remarks of my noble friend Lord Ridley. We think that it would be inappropriate for the Secretary of State to determine whether or not a notice should be enforced. This must involve him in disputes as to whether or not a child should be required to attend an examination for the purposes of assessment. This is a matter which should be decided at the local level, and by way of explanation as to how these procedures will work, I do not think that I can add anything further to what I said on the previous amendment.

I believe this is a matter in which the local authorities will only use these procedures as a matter of last resort. We must expect them to comply with the law unless there is a reasonable excuse, and I think the local authorities would deeply resent the involvement of the Secretary of State in something which is quite properly their work.

Baroness David

I would say in answer to the noble Viscount, Lord Ridley, that the Secretary of State is referred to on a great number of occasions in this Bill, and I think one might equally say that is the business of the local authority. I can only repeat that I am not satisfied, but I will withdraw the amendment now.

Amendment, by leave, withdrawn.

[Amendments Nos. 76 and 77 not moved.]

3.12 p.m.

Baroness Darcy (de Knayth) moved Amendment No. 78: Page 16, line 11, leave out ("may") and insert ("shall").

The noble Baroness said: In moving Amendment No. 78, I should like to speak also to Amendments Nos. 79 and 80. Amendment No. 78 would place a duty on the Secretary of State to make provision by regulations with respect to the keeping, disclosure and transfer of Statements. As paragraph 4 stands he is not obliged to do this. I assume that we are also concerned with the records and reports lying behind the statement, and perhaps the Minister can say if it is not so. This is such a sensitive issue that I feel it is essential for the duty to be placed upon the Secretary of State to prescribe procedure by regulation, particularly in regard to disclosure if this also covers records.

When, on the first day of the Committee stage, I moved Amendments No. 29, which dealt with the parents' rights of access to all records, I said that it was an unjustifiable infringement of parents' rights that they were refused access to records, whereas apparently many LEA personnel, not all of them professionals, would enjoy unrestricted access. I feel that there must be some restriction on their circulation, and I see that the notes on the Bill from the Department of Education and Science make it clear that disclosure in this context means disclosure to people other than the parents.

Amendment No. 79 is a paving amendment to Amendment No. 80, which would require—or empower if Amendment No. 78 fails—the Secretary of State to make provision by regulations for the discontinuance and destruction of statements. In the Education (Scotland) Bill now going through this House—and I hestitate to refer to that Bill after the remarks made by the noble Baroness—Clause 4 on page 27 gives the Secretary of State the power to do this. I cannot find any mention of the eventual destruction of the statement in this Bill, and I feel strongly that there should be such mention, particularly with regard to records.

One of the main objections from parents and voluntary organisations is that at present reports are often factually inaccurate and highly judgmental. Perhaps I may give one example. This is a primary record on an eight-year-old which was found in a secondary folder seven years later: Far too much pressure is put on X to look after younger brother and sister and she is frequently at home for domestic reasons. Mother is unkempt and always telling the children how she longs to return to her home in Germany". That is just one of a number of London secondary school records provided by the Advisory Centre for Education, who add: There is no reason to believe the collection to be unrepresentative and it contains a frightening variety of subjective judgments made by teachers and retained in files which may be available to all sorts of outside agencies. At no point may the student or parent concerned check or challenge or even know of the existence of the file". I feel it is essential that we must make rules regarding the discontinuance and destruction of statements and everything lying behind the statements on a child who has had special educational needs. I do not think that it should be lurking like a skeleton in the cupboard for all the days of the child's life. I beg to move.

Baroness Young

The noble Baroness has moved one amendment and spoken to a second one. I will try to reply to both. It is common practice in legislation for Governments to take power to make regulations on several specific topics while retaining discretion about the extent to which they are used. It is not always desirable to be required to make them, as this amendment would have it. While it is our intention to make some regulations in this area, we have not as yet decided on how far they should deal with each of the three heads of keeping and disclosure and transfer, or the balance between what is best covered in guidance and what is best covered in regulations. In this connection, we will, of course, study very carefully what the noble Baroness has said on this matter.

This paragraph follows the form of Section 27 of the 1980 Act under which "the Secretary of State may by regulations make provisions with respect to the keeping, disclosure and transfer of educational records." It is precisely to bring it into line with that Act that we have written it in this way. The noble Baroness went on to speak to two other amendments. I have listened very carefully to what she has had to say, and I recognise her concern. I think it would be helpful if I explained the circumstances in which a local education authority will cease to maintain a statement. This may happen, first, if a child goes to live outside the area of the authority which made the statement. In that case, the child ceases to be the responsibility of that authority. The statement ceases to have any effect, because the authority will no longer be responsible for the child's education. If the child has moved into the area of another local education authority the original authority may pass on the records, but there will be power under paragraph 4 to make regulations about that. It will be for the new authority to decide whether to make a statement. The statement will lapse if the child is over 16 and leaves school. Thirdly, the authority may change their mind about the child. This may be the result of an annual review or by request from the parents for another assessment, and a different statement will be made. Before this happens the authority must under paragraph 6 of Schedule 1 inform the parents of their intention and give them the opportunity to make representations. I do not think, therefore, that regulations are needed about discontinuance. In the two instances, it will be automatic, and in the other provision is made in the Bill.

May I conclude by making one further general remark about this matter. The noble Baroness has spoken as if the destruction of a statement is the destruction of a harmful document that should be destroyed as soon as possible. If we really believe that this is the case, we take, if I may say so, a view about the Bill which is certainly not the Government's intention, because the whole purpose of the LEA in making a statement on a child, which thereby imposes duties on the LEA and attracts parental rights, is solely to protect the child's interests. I would be most dismayed if this was conceived as conferring some kind of stigma on the child. I think the instance the noble Baroness quoted is not a case of a statement which will be concerned about special education and the provision that is going to be made for the child with special educational needs; it is something about the school record, which is quite a separate matter. I hope that with all the safeguards that have been written into this Bill, including consultation with parents at a number of stages, a statement will be seen as a joint document in the interests of the child in all these matters, and it should not be destroyed if it is going to be helpful for the child who is going on to further education or higher education. It should always be helpful. If it needs to be amended then it is appropriate that it should be, and it should be seen positively as a document that adds to the child and does not detract from the child in any way at all.

Baroness Darcy (de Knayth)

While thanking the noble Baroness for her reply, may I ask her this. When we are talking about keeping and disclosure of statements, are we only referring to the statement and not the documents that lie behind the statement?

Baroness Young

Yes, we are talking about the statement on the child.

Baroness Darcy (de Knayth)

Then could I ask the Minister what is going to happen to the records and reports, because there is absolutely no provision as to what is going to happen to them. These are the things I am concerned about.

Baroness Young

My understanding as regards that matter is that they would be covered by the general terms of the regulations which would and do apply under the 1980 Act. They would apply in these cases as well. If I am not right about that, I shall, of course, write to the noble Baroness, but that is my understanding.

Baroness Darcy (de Knayth)

I am sorry to come back again, but I am not very conversant with the 1980 Act. Is there anything about destruction or does it refer only to keeping and disclosure in the 1980 Act?

Baroness Young

It is on the subject of the keeping, disclosure and transfer of educational records.

Baroness Darcy (de Knayth)

So there would be nothing on the destruction of these records and reports?

Baroness Young

Not as I understand it—no.

Baroness Darcy (de Knayth)

I thank the Minister for her reply but I cannot say that I am at all cheerful about it. I would like to read what she has said and think about the whole matter and perhaps have some correspondence with her, if she is willing. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 79 to 82 not moved.]

3.22 p.m.

The Earl of Radnor moved Amendment No. 83: Page 16, line 27, leave out ("15") and insert ("30").

The noble Earl said: The hour is getting a bit late and I shall not take very long on the question of the time of appeal on the termination or the amendment of a statement. We spoke about this on the first day of the Committee stage in relation to the serving of a statement. The arguments on that occasion were quite simple. I think that there was a difference of opinion between myself and my noble friend Lady Young. My noble friend said that it was a matter of balance, and indeed it is. I still feel very strongly indeed that the balance has tipped much too far towards shortness. A short time for appeal perhaps benefits the child with a disability which is being kept out of school. I think that the point was made that you cannot put it into any slot, and I can appreciate that.

However, with the learning disability child it is very important to remember that the parents will probably or could probably want to have a second opinion. Further, as I have already said, they might take the view that it might have to be a multi-disciplinary assessment which might involve three different disciplines. There are two weekends or so in 14 days. This seems to me to be a completely impossible situation.

On the last occasion my noble friend said that there would have been consultations all down the line, and I can appreciate that too. However, I do not think that that is quite good enough. One travels with hope and perhaps all through those consultations and being brought in, so to speak, on the act, one might, as a parent, just be waiting at the end of the day and hoping that everything was all right and then suddenly the statement would be, in this case, amended or they would say "It is finished; we shall cut it off". I think that in practice many parents would suddenly say. "Now we must take some action. We only have 15 days. We want to talk to our friends and contact So-and-so"—possibly three people. It is quite impossible for them. In my view I am putting forward a compromise and it was a compromise, to my mind, on the last occasion. I really think that 30 days can be too short, but I take the point about children being kept out of school. As a compromise I think that doubling to 30 days is just about right. I beg to move.

Baroness Young

This was a matter that we looked at on the first day of the Committee procedings and I should like, because I think that this amendment is based on a misunderstanding, to explain the circumstances in which local education authorities might propose to amend or cease to maintain a statement. We should bear in mind that many such proposals will be made with the consent of parents or perhaps at the request of parents. If the parents do not dispute the proposal, clearly 15 days is adequate for making any representations, because the chances are that they will not have any representations to make.

A proposal to change or cease to maintain a statement will always be a consequence of an earlier process of assessing the child and making the statement. In that process the parents will have had at least four weeks at the beginning in which to make representations, and two weeks in which to consider and comment on the draft statement. There will have been a lot of contact between the parents and the LEA, and the parents will be having to consider, not the whole question of their child's needs, but the changes which the LEA are proposing to make.

Perhaps I should explain what 15 days will mean in practice. The noble Baroness, Lady Darcy (de Knayth) mentioned postal delays. I have made inquiries about this and am told that the effect of the Interpretation Act 1978 is that when a notice is served by post it is assumed, unless the contrary is proved, that it is served at the time at which it: would be delivered in the ordinary course of post". This means that if a person has a period of 15 days from service of a document in which to make representations, that period is counted from the time the document would ordinarily be delivered—which is a matter of general assumption—or from a later time, if that later time of delivery can be proved. In many cases, the change to be made in the statement will be of a minor, or automatic character, such as a change of school from primary to secondary, and there will be no cause for disagreement.

However, where the LEA propose to make any significant changes—and this is the point which worries my noble friend—they could scarcely do so without a reassessment of the child having taken place. Should the LEA not propose to reassess a child in such circumstances, the parent would be able to request an assessment under the provisions of Clause 9, and it is difficult to see how the LEA would have grounds for refusing. The process of assessment would thus have opened up the rights to consultation under Clause 5, under which the parent is allowed no fewer than 29 days to make representations. I think there thus need be no concern that parents will have insufficient time to make representations where serious issues are at stake.

Imagine the circumstances in which an LEA refuses and appears to be vexatious. Nothing could be worse than the kind of publicity that it would get. I believe that it would be possible for the parents to intervene and request the Ombudsman to intervene, because it could be seen as maladministration. But long before anything reached that nature, it would not be in the interests of the LEA to behave in a way in which the parents had information that they were anxious to bring before the LEA, and not to use it. Indeed, the whole purpose of the Bill is to get this correct relationship between the parents and the LEA. I do not envisage the circumstances in which the parents need a longer length of time than the various times that we have indicated in the course of this Bill, and I believe that at the end of the day we must balance this against the needs of the child to be in the school which is suitable for him, he having been identified as having a special educational need. I hope that my noble friend will withdraw this amendment.

Baroness Darcy (de Knayth)

I should like to make a few comments on this amendment because noble Lords will see that I have tabled Amendment No. 83A, which is an attempt at a compromise after the Minister agreeing on the first day of the Committee stage to look at the possibility of allowing 21 days in which a parent could make representations when he is served with a copy of the proposed statement under Clause 7(4).

On the point of Clause 7(4), the Minister explained at a meeting, which she very kindly arranged for us last Wednesday, that the LEAs would put a fairly broad interpretation on the 15 days, particularly as it was in their best interests to get the parents' approval of the statement and minimise the likelihood of an appeal under Clause 8(1). I wonder whether she would be kind enough to say a few words on this because I think that she has been speaking on the amendment in the name of the noble Earl, Lord Radnor? Can she say whether this broad interpretation of 15 days would go out in guidance issued to LEAs? Can she confirm that that guidance would also advise LEAs that parents should be informed of their right to a second opinion?—this is still on Clause 7(4). Would they be given time in which to seek that opinion? I am sorry to raise this question at the moment, but it would be very helpful if we could have something on the record.

Baroness Young

I have said that I shall look at all this. At this stage I cannot give an absolute undertaking that the guidance will contain an answer to every point that the noble Baroness has raised. Clearly, if the parents want a second opinion and they say to the LEA, "We are worried. Clearly there is something wrong. We know that your doctor has suggested one diagnosis. We are not satisfied. We wish to seek a second opinion" it would be totally unreasonable of the local education authority not to allow time for that second opinion. As I said to the noble Baroness when we had our meeting earlier, if it behaved in this way it would be seen by the public at large to be behaving in a totally unreasonable way, and I do not believe, knowing as I do those administering local education authorities, that they would do so.

Even if they were minded to, there would be councillors on the authority who would raise the case. Before you knew where you were the press would raise the case. It would be about the last thing that the local authority would want, and it would certainly not be in the best interests of the child. If the worst came to the worst, the Ombudsman could be called in. There is a limit to the extent to which we can go on saying that local authorities must ensure all the time, when there are so many reasons—even if they were unwilling to do so, which I do not for one moment believe—that they would interpret this Bill in the spirit in which it is intended.

The Earl of Radnor

I was hoping when I moved this amendment that we would not have to rely on the press and the Ombudsman. But I am somewhat reassured by my noble friend. I still believe that it would be better to have a longer period. I see there is a following amendment. However, in all the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 83A not moved.]

Schedule 1 agreed to.

Schedule 2 [Transitional provisions]:

Baroness Darcy (de Knayth) moved Amendment No. 84: Page 17, line 16, at end insert ("unless requested to by a parent under section 9(1).").

The noble Baroness said: The purpose of this amendment is to overcome a concern that there will be an unnecessary delay in moving children who are at present inappropriately placed in special schools into ordinary schools, because, as Schedule 2 stands it seems that all the children at present in the special schools will be deemed to have a statement, and for 12 months beginning with the commencement of the Act the LEA need not make an assessment and statement for those children. I can understand that the reason for this is pressure of time and work on LEAs, and that it is expected in fact that many children will be assessed within several months of the Act being passed. However, this may not be the case in all cases, and it is important that parents who are dissatisfied with special educational provision be given the right to an immediate assessment, because 12 months is a very long time in the development of a child, and where provision is inappropriate it might have far-reaching and long-term harmful consequences. I beg to move.

Baroness Young

I think the Bill has met the point that the noble Baroness has asked. In effect, LEAs will be given 12 months after the coming into force of Clause 7 of the Bill in which to compile statements in respect of some 180,000 children in England and Wales currently ascertained as handicapped. Local education authorities will clearly need some time in which to undertake this task, and 12 months seems to me to be a reasonable time to allow for this.

I am happy to assure the noble Baroness that, if during this period the parent of one of these children requests an assessment under Clause 9 of the Bill and that assessment reveals the necessity for a statement, then LEAs will have a duty to complete one. Therefore, the amendment put forward by the noble Baroness is unnecessary, as the Bill as drafted will have the desired effect of her amendment.

Baroness Darcy (de Knayth)

I am happy to say that for once I am delighted with the noble Baroness's reply, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 agreed to.

Schedule 3 [Minor and Consequential Amendments]:

Baroness David moved Amendment No. 85:

Page 20, line 25, at end insert— ("17. Where the appeal committee is considering an appeal made under section 8 of the Education Act 1981 it shall include 1 or more persons who have knowledge and experience in specialeducationand are acquainted with the special educational provisions in the area of the authority, or are parents of registered pupils with special educational needs or persons defined under section 15 of the Chronically Sick and Disabled Persons Act 1970.").

The noble Baroness said: I touched on this amendment when I was speaking about amendments to Clause 8 on the first Committee day. This amendment has to deal with the constitution of the appeal committee. In Committee in another place, one of the reasons the Minister would not accept that the appeal committee decision should be binding on both the local authority and the parent—as it is with children under the 1980 Act, and children in ordinary schools—was that the appeal committee might not have the necessary expertise to judge the type of issues involved in deciding on special educational provision. If the amendment were accepted, that difficulty would be overcome and the appeal committee decision could be binding—that is, if we passed the appropriate amendment on Report—because this amendment would put on the committee some person who had knowledge of special educational provision in the area, perhaps themselves parents of registered pupils with special educational needs or persons defined under Section 15 of the Chronically Sick and Disabled Persons Act.

It would mean that one piece of discrimination against the parents of a child with special educational needs would be removed, and I should very much like to see that happen—a bit of positive discrimination towards them would be right. I do not believe it would be difficult to find one or two people suitable to serve who have the appropriate experience, and they need not take up a disproportionate number of places, as the appeal committee could have as many as seven people on it.

Baroness Young

That was a point which we considered when we were looking at the framing of the Bill, because, as the appeal committee's decisions will not be binding on the local education authority, we wondered whether it would be appropriate to include on the appeal committee people with specialised knowledge, in order of course that we could make the same provisions in this Bill apply as apply under the 1980 Act.

The difficulty—it is a very practical one—which in a sense has been illustrated at various points in the debate today, is that special educational needs will cover a great many varying degrees of handicap, both severity and complexity. My noble friend Lord Renton spoke earlier about the special needs of mentally handicapped children, and indeed those are widely recognised. But if, for example, we are dealing with the special needs of a blind child, it does not necessarily follow that the person who is particularly knowledgeable about the mentally handicapped will be equally knowledgeable about the needs of a blind child, or a totally deaf child or a spina bifida child, or indeed a child with some very obscure illness who has special educational needs.

I believe that when local authorities come to look at the composition of the appeal committees, they may well include someone who has an interest in special education, and in general that would be a desirable thing for them to do, but we do not think it would be right to lay down that kind of provision in the Bill because we feel that the disputes which could arise about placement at special schools will differ very considerably from those about placement in ordinary schools in terms not only of questions about whether it is the parental preference, but because questions of the location, supervision, facilities, medical care will all have to be taken into account.

It is not that we are unsympathetic to the desire behind the amendment, but we do not believe it would be right to specify in the Bill who should constitute the appeal committee, bearing in mind that parents will have a further right of appeal to the Secretary of State should the local education authority not uphold the recommendations of the appeal committee. I hope therefore that the noble Baroness will not press the amendment.

Viscount Ridley

Can this be included in the guidance to local authorities? I think it would be better done that way than by way of an amendment to the Bill.

Baroness Young

That is certainly a matter I should be happy to look at, and that may be something we should do.

Baroness David

Perhaps I should have made it clear that my amendment was meant to be drawn so that the person with experience need not necessarily be a permanent member of the committee; it could be a permanent member or it could be somebody co-opted for the special occasion, as it were. However, if the Minister would say there will be some guidance about this, I should be happy to withdraw the amendment.

Baroness Young

As I have indicated, this is certainly a matter that I shall look at.

Baroness David

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 3 agreed to.

Remaining schedule agreed to.

House resumed: Bill reported with an amendment.

Lord Denham

My Lords, with the leave of the House, at the end of what really has been a rather gruelling week—although this is not entirely unknown at this time of year—after four late nights in a row, and at nearly a quarter to four on a Friday, I think it would be right if I expressed on behalf of all sides of the House our thanks to the staff in all parts who have looked after us with such unfailing courtesy and kindness.