§ The Minister of State, Department of Education and Science (Baroness Young)
My Lords, I beg to move that this Bill be now further considered on Report.
§ Moved, That the Bill be further considered on Report.—(Baroness Young.)
§ On Question, Motion agreed to.
§ Clause 7 [Statement of child's special educational needs]:
§ 11.33 a.m.
§ Baroness Young moved Amendment No. 15:
Page 6, leave out lines 7 to 14 and insert—
("shall serve on the parent of the child concerned—
§ (4) If the parent on whom a copy of a proposed statement has been served under subsection (3)(a) above disagrees with any part of the proposed statement he may, before the expiry of the appropriate period—
- (a) make representations (or further representations) to the authority about the content of the proposed statement;
- (b) require the authority to arrange a meeting between him and an officer of the authority at which the proposed statement can be discussed.
§ (4A) Where a parent, having attended a meeting arranged by a local education authority under subsection (4)(b) above, disagrees with any part of the assessment in question he may, before the expiry of the appropriate period, require the authority to arrange one or more meetings under subsection (4B) below.
§ (4B) Where a local education authority receive a request duly made under subsection (4A) above they shall arrange such meeting or meetings as they consider will enable the parent to discuss the relevant advice with the appropriate person or persons.
In this subsection—
relevant advice" means such of the advice given to the authority in connection with the assessment as they consider to be relevant to that part of the assessment with which the parent disagrees; and
appropriate person" means the person who gave the relevant advice or any other person who, in the opinion of the authority, is the appropriate person to discuss it with the parent.
§ (4C) In this section "appropriate period" means the period of 15 days beginning—
- (a) in the case of a request under subsection (4)(b) above, with the date on which the statement mentioned in subsection (3)(b) above was served on the parent;
- (b) in the case of a request under subsection (4A) above, with the date fixed for the meeting arranged under subsection (4)(b) above; and
- (c) in the case of representations, or further representations, under subsection (4)(a) above—
- (i) with the date mentioned in paragraph (a) above; or
- (ii) if one or more meetings have been arranged under the preceding provision of this section, with the date fixed for the last of those meetings.").
§ The noble Baroness said: My Lords, I beg to move this amendment. The House will recall that yesterday we had a long debate on the whole issue of confidentiality, in the course of which I spoke to this particular amendment, so I shall not take up the time of the House by repeating what I said on that occasion. However, there are two points that I should like to make. First, I wish to say to the House that the Government have brought forward the amendment in response to the concern which has been expressed not only by Members of your Lordships' House, but by Members of another place, members of voluntary organisations and others, on the issue of confidentiality. Therefore I hope that it will meet with the approval of the House.
§ I also wish to remind the House that assessment is a continuous process, in which the making of a statement might come at a relatively late stage. One of the objects of the Bill is to bring in parents at every stage, and parents will be in contact with some professionals before the local education authority proposes to institute multi-professional assessment. Parents will have the right to be present at all examinations on which reports to the LEA are based. It would be unusual if parents did not know the professional recommendations made and the grounds for them. Therefore the amendment will allow parents to clear 889 up any misunderstanding about the statement face to face with those contributing to it. It should also have an effect on professional practices and in encouraging the sharing of information before reports are made to the LEA. since the professionals will wish to avoid a second series of interviews. I hope that your Lordships will agree that the amendment will have the effect of strengthening good practice in sharing information between parents and professionals at an early stage in assessment. I beg to move.
§ The Deputy Speaker (The Earl of Listowel)
My Lords, I shall now call Amendment No. 16 as an amendment to Amendment No. 15.
§ Lord Renton
had given notice of his intention to move as an amendment to Amendment No. 15, Amendment No. 16:Subsection (4), at end insert ("and at which all relevant information on which the proposed statement was made shall be disclosed at the request of the parent.").The noble Lord said: My Lords, I rise to relieve your Lordships' anxiety by saying that I do not propose to move this amendment, but I should like to speak to Amendment No. 15, which has just been moved by my noble friend Lady Young, and I trust that this is the moment for me to do so, having made it clear that I do not wish to move Amendment No. 16.
§ The Deputy Speaker
My Lords, I think I should just say that this amendment is not moved. Therefore the Question is, That Amendment No. 15 be agreed to.
§ Lord Renton
My Lords, I am much obliged to the noble Lord. It would be churlish not to acknowledge the considerable trouble and careful thought which my noble friend Lady Young has undertaken in preparing and tabling the amendment. We should not hold against her the fact that, although this is a very important amendment to the Bill, she gave only a short explanation of it this morning, since in fact she gave a very full explanation of it yesterday when speaking to an earlier amendment to Clause 5. I have no wish to undo the good work that she has done in saving time. I would say merely that her amendment is indeed welcome. I still feel that with regard to Clause 7 we need to give the matter further thought, and I trust that in a few moments I shall have the opportunity of moving Amendment No. 17. I support my noble friend in her amendment.
Baroness Darcy (de Knayth)
My Lords, I should like to ask the noble Baroness a question, since I was puzzled about the wording of the Government's amendment. Under subsection (4) a parent can have a meeting with an officer of the authority if he disagrees with any part of the proposed statement. But under subsection (4A) he may ask for one or more meetings with the appropriate person or persons if he disagrees with any part of the assessment in question. Surely the term "assessment" covers not only the examination, at which the parent can of course be present, but also the conclusions drawn by the professionals from the examination, and consequently the reports that they make. If the parent cannot see the report, how is he to know whether he disagrees with any part of the assessment?
890 I think I now realise that the words "in question" after the word "assessment" probably qualify the matter in order to mean the details of the authority's assessment as contained in the first part of the statement. However, I should like the Minister to clarify the point, since otherwise there seems to be contradiction in terms in her amendment.
§ Lord Digby
I very much wish to welcome the amendment, and I am glad that my noble friend Lord Renton has not moved his amendment. The important point is that there should be confidence between the authority and the parents, and that the whole process should go as smoothly as possible. I appreciate that this does not always happen, but I believe that the amendment will help that confidence and will ensure that the parent can be told by the officials exactly what is the situation.
Many of the amendments have assumed that the local authority officials are trying to do down the parent in some way. I should like to go to the other extreme. I believe that certainly 99 per cent. of education and social services officers have the interests of the child at heart; in fact, I would say that 100 per cent. of them do. I do not say that they always get it right—no one can get it right—but they are trying. However, so far as parents are concerned, obviously they are all interested in the good of their children, but there is a small minority of parents who will want to make difficulties and trouble, and I should like to ask the noble Baroness where in the amendment are the words appropriate to that situation.
I am afraid that I am slightly muddled between subsection (4)(a) and subsection (4A). I presume that when the Bill is printed, after becoming an Act, subsection (4A) will become (5)(a). Anyway, it is the subsection (4A) at the bottom of the first page of the Marshalled List, where it states that the parent may:require the authority to arrange one or more meetings under subsection (4B) below".Does this provision for the "one or more meetings" take priority over (4B), where it says that the local education authorityshall arrange such meeting or meetings as they consider will enable the parent to discuss the relevant advice with the appropriate person or persons."?I believe it is very important that there should be a sufficient number of meetings to make the situation clear but that a difficult parent who wants to make trouble should not be able to require endless meetings. I am sure the object must be to reach agreement between the parent and the authority and for matters be to as smooth-working as possible. May I ask the noble Baroness, Lady Young, for her assurance that "further meetings" are meetings at which the parent will be able to discuss the relevant advice?
§ 11.41 a.m.
§ Baroness Young
My Lords, with the leave of the House I should like to answer the two questions which have been raised. Before doing so, I should like to thank my noble friend Lord Renton for the welcome he gave to this amendment. I recognise that the amendment does not go as far as he and some other noble Lords would like, but I believe it goes a very long way towards meeting the points concerning parents' 891 rights which they want to see covered.
With regard to the question which was raised by the noble Baroness, Lady Darcy (de Knayth), I should like to say that her explanation of the terms "assessment" and "statement" were absolutely correct. The assessment leads to a statement and it provides an opportunity for the parent to discuss matters with the professional at that stage, because this is the stage at which the parent will be concerned—when a draft assessment will have been made and the parent is worried at about what it says. The parents can ask for an interview with one of the professionals concerned and it is at this stage that the interviews would take place, leading to the statement. I do not consider that there is any contradiction here. I must apologise for the length of the wording of this amendment, which I recognise is complicated, but it is very necessary to get the wording right, and if there are any doubts about the explanation I would be very happy in the Recess to write further to any noble Lords about this.
On the point which has been raised by the noble Lord, Lord Digby, about the number of meetings, I would say to him that I welcome his support for this amendment and, as someone who is very much involved in local government, his assurances about integrity and the hard work of those in local government who will be responsible for working out the procedures laid down in this Bill. As he quite rightly said, we have given parents the opportunity to have more than one meeting. The reality of life is such that if a parent is seriously worried about his child and the assessment of his child, he may well have a meeting with a professional officer who has been involved and, as so often happens, not ask all the questions that he meant to ask on that occasion. The parent might think of some more questions and may then want to go back for a second meeting. The possibility is contained in these proposals.
Clearly if parents asked for an extraordinary number of meetings, this would not be helpful to the child, and the local authority would be justifiably concerned if the meetings went on and on. But under these procedures, there would be a fortnight's interval between one meeting ending and notice of a second meeting being given; and this interval would give the parents a chance to come back on anything else. What we want to do is to meet the real concerns of parents; the people who inevitably are going to be very worried about their child, and we want assurances that these worries will be ironed out.
May I say that all of this will be a long process and it will build very much on establishing a good relationship between the parents and the authority and between the parents and the professional concerned. That is why in my opening remarks I said that we believe this amendment will encourage the best practice that we now have, whereby parents have the opportunity to discuss very fully with professionals their concerns about their child. As I have said to the noble Baroness, Lady Darcy (de Knayth), I recognise that this is a long amendment but it comes at one of the later stages in the Bill. If on reflection any noble Lord is uncertain about its meaning, I would be very happy to follow up any points in correspondence during the Recess.
§ Baroness Jeger
My Lords, I should like to thank the noble Baroness for the care and thought which she has given to this very important and difficult matter. I have only one brief query, which concerns the wording of the amendment. Is there any significance in the use of the words:shall serve on the parent of the child concerned.et cetera? That seems to me to have rather a military undertone. One has writs and summonses served upon one, whereas throughout the rest of the Bill we talk about "notifying" a parent or "informing" a parent. For instance, in the Government Amendments Nos. 8 and 12 the words "notify" or "informing" are used. I wonder if there is any legalistic process in the background which makes the use of the wording "serve on the parent" essential. It does not sound to ordinary people so friendly as the other references in the Bill.
I should also like to ask the noble Baroness the Minister whether in the guidance which will be sent out she will remind officials—if indeed she considers it necessary to do so—that, when sending written explanations, some attention should be paid to the language difficulties which we discussed yesterday, because much of this helpful amendment will be wasted if care is not taken to ensure that a minority of parents are able to understand the letters which are sent to them.
§ Baroness David
My Lords, may I ask one further question about the length of time involved? The Minister herself was anxious when we were trying to extend the notification period from 15 days to 21 days that a child might be out of school for some time. If there are to be further meetings and further representations, I wonder whether a professional will always be available at the time he is wanted? Has the department thought out what is going to happen to the child during what could be a very lengthy process?
My Lords, I wish to do no more than to express the gratitude of my noble friends on these Benches to the noble Baroness for what she has done in this amendment. She knows very well that I might have preferred a slightly different solution but, not having been successful in achieving that, I do want to say how very grateful I am to the noble Baroness the Minister for what she has done here. I take the view that three-quarters of a loaf—which is what we have got—is certainly a great deal better than no bread, and so we are most grateful to the noble Baroness.
§ Baroness Young
My Lords, I should first like to thank the noble Lord, Lord Winstanley, for the welcome that he has given to this amendment. In reply to the noble Baroness, Lady Jeger, we take her point about the language problem. Throughout the guidance which we shall issue on the Act we shall emphasise the need to ensure that parents understand what is going on—if necessary, by arranging an oral explanation to back up the letter. This is essential to the working of the Act.
The noble Baroness, Lady David, was quite right in reminding the House of the amendment which she moved in Committee, when she was concerned that 893 15 days was an insufficient length of time for making representations on the statement. I had hoped very much that she would feel that parents' interests were taken into account fully on this amendment, because there could be a sequence of 15 days. Of course, it may well be, as she says, that the professional involved may not be available at the particular time, and there may be a bigger gap than that. The point was that the parent should indicate within the two-week period of time that they would like to discuss it further with the professional.
Clearly we shall have to take account of the point that was raised by my noble friend Lord Digby, where, if this process ran on for a long time and the child was out of school, it might be necessary to look at the matter again; but we do not believe that it would be right at the moment to alter the wording here. I think this would be the appropriate way to deal with it.
I must apologise to the noble Baroness because I forgot to answer her other point about serving a notice. The word "serve" is used to attract the provisions of Section 113 of the Education Act 1944, which enables the notice to be served by post. This, in turn, attracts the provisions of the Interpretation Act, which provides that the notice is deemed to be served on the day when it would be received in the ordinary course of post. I am quite certain that she will recognise that this is a legal answer to this point. It does not in any way mean that the attitude of those who are sending it would be any different from that relating to any other part of the Bill. It is merely complying with this legal requirement, and I hope that that meets her point.
§ On Question, amendment agreed to.
§ 11.52 a.m.
Lord Renton moved Amendment No. 17:—
Page 6, line 21, at end insert ("and, at the request of the parent, provide all the relevant information on which any such statement was based or which caused the authority not to make a statement.").
§ The noble Lord said: My Lords, I beg to move Amendment No. 17, which raises in relation to statements under Clause 7 the issue of confidentiality, on which we had a full discussion yesterday in relation to assessments under Clause 5. That issue was decided by a narrow margin of 93 votes to 88. Unaccustomed as I am to flogging dead horses, and lest it be thought that the issue under Clause 7 was decided under Clause 5 yesterday, may I say that the issue under Clause 7 raises a different matter. It is a completely different situation under Clause 7, as I will explain.
§ Under Clause 5 we discussed assessments which will frequently be made—in fact, it could be said will generally be made—at a very early stage in a child's life; sometimes, perhaps, even before the child is a year old, and often before it is two years old, as we can understand when we look at Clause 6 of the Bill. At that early stage the shock to the parents of learning the reality will be considerable, but by the time that statements come to be made under Clause 7 the parents will have become accustomed to the situation. We 894 hope that they will generally have got over the shock.
§ So the argument that it may upset them, that they may not be able to take it, will, I would suggest, scarcely, if ever, apply by the time we come to the stage of making statements under Clause 3. By that stage they really should be treated like adults. I had a feeling yesterday during our discussions that we were treating parents in some ways as though they were almost children instead of treating them as adults. But by the time that the statements come to be made, surely the case for full disclosure to them is even stronger than it was under Clause 5.
My Lords, may I briefly refer to the wording of Amendment No. 17? Your Lordships will see that it simply adds something to subsection (5) of Clause 7, which remains undisturbed by any amendment moved by my noble friend on behalf of the Government. If your Lordships will turn to subsection (5) of Clause 7—and I think it is worth reading it out—it says:
Where any such representations are made to a local education authority the authority may, after considering those representations—
and this is important—
(c) determine not to make a statement; and shall notify the parent in writing of their decision.
I suggest that it would be of great help to the parents and, indeed, to all concerned if we added the words in my amendment, which are:
and, at the request of the parent, provide all the relevant information on which any such statement was based or which caused the authority not to make a statement.
In other words, the parents have the right to know fully, as well as precisely, not only the reason why a statement was made or was modified, but why no statement was made at all; and they cannot judge that situation unless they have access to everything that is relevant.
§ The matter does not end there, because they are given a right of appeal against the decision whether to make a statement or to modify it, or not to make it at all. How can they decide whether to exercise their right of appeal? How can they effectively appeal unless all information is made available to them? Therefore, I say—and I am afraid I make no apology for saying it—that, without wishing to invite your Lordships to indulge in the full discussion that we had yesterday under Clause 5, we have a different situation today under Clause 7, and I suggest that it would be appropriate to add the words that I have used, and used sparingly, in this Amendment No. 17. I therefore beg to move.
Baroness Darcy (de Knayth)
My Lords, I should like to give my fullest support to Lord Renton. I think that, in the end, the main reason why I withdrew my compromise Amendment No. 14 to Clause 5 last night was because I became convinced that there can be no half-measures. And, as the noble Lord, Lord Winstanley, said in Committee when we first debated this subject, at col. 542:…whatever may be the dangers of knowledge, to parents or any others, they are nothing compared with the dangers of ignorance ".—[Official Report, 6/7/81.]
§ Lord Robbins
My Lords, I should like briefly to 895 support Lord Renton's amendment, which in my judgment harmonises completely with the humane intentions which inspired the noble Baroness in framing her original amendment.
§ Lord Digby
My Lords, this may well be a different point but the basis is still the same and I must repeat my objection to this, which is that those writing reports will always be looking over their shoulder and saying, "If someone queries this opinion here, or that opinion there …". I believe that the reports will not be as full and as helpful as if they are made in the normal process, without having to be looked at in detail by the parents. I also feel that this sort of amendment rather invites friction by giving these rights, suggesting that they must get all these things. I hope that it will not be passed.
§ Baroness David
My Lords, I should like to add my support to the amendment. I think the noble Lord, Lord Robbins, has said everything that I was going to say, but I should like to add one point about the difficulty of parents seeing reports. An analogy with magistrates' courts can be made: where there is a social inquiry report, and possibly a pyschiatric report as well, the person concerned has to see the reports. It is part of the duty for these to be seen. If it can be faced up to there, I think it could perfectly well be here.
§ Baroness Faithfull
My Lords, on that point may I say that it is perfectly correct that in a court of law parents must see the reports submitted to the magistrates, but they do not see the documents on which the report was made; they do not see the case file. I just wanted to clarify that point.
§ Baroness Young
My Lords, I understand very well the sincerity of my noble friend Lord Renton on this matter of confidentiality, but I very much hope that he will not feel at any stage that I or any of my colleagues in another place who have been concerned with this Bill have ever taken the attitude towards parents of not treating them like adults. It would be most unfortunate if anybody believed that that was our attitude; it certainly is not. I think it is very important for parents to understand that one of the underlying principles of this Bill is parental inolvement at every stage.
I was very grateful for the intervention of my noble friend Lady Faithfull, who has very sensibly drawn this distinction between the statement which the parent will see and the reports lying behind it. I think we need to keep this distinction in mind and I have been grateful for the support of my noble friend Lord Digby. Lord Renton is quite right in saying that his amendment is different from the one that he moved to Clause 5, because this amendment would bite after the statement had been made; it would bite after the parent had had an opportunity to make representations on the draft statement, and also to make representations under the amendment that the House has just carried, and had the opportunity to talk to professionals. It therefore comes at the end of a very long process of consultation, and I believe that at that stage 896 it would be very difficult to say that it would serve any useful purpose.
Apart from that fact, it would be very difficult for anyone who had to work this Bill, if this amendment were accepted, to know what was meant by the words, "relevant information", once the statement of a child's special education needs had been settled or the local education authority had decided not to make a statement. Therefore, it appears to me to serve no useful purpose at this stage, as the whole process set out in Clause 7 has been completed.
I should like to repeat that the parents will have had the opportunity of an interview with the local education authority and with the professionals contributing to the assessment. They will, therefore, lack no information about their child's special educational needs should they wish to appeal against the statement once it has been made. Finally, may I clear up a misunderstanding about the meaning of Clause 7(5)(c), where it says that the authority maydetermine not to make a statement;The only circumstances in which they would not make a statement would be if the parent involved had made representations and the authority decided not to make a statement, and therefore the parent would have been satisfied with what the authority had done and there would be no dispute between the two at all. Therefore, I think the second part of the amendment is also unnecessary. I hope that my noble friend will therefore feel able to withdraw his amendment.
The Bill essentially rests over these proceedings on the development of this long period of discussion with the professionals on the child's special educational needs. The parent will have all the information that he requires if he wishes to appeal, which one hopes would be the very last thing that he would wish to do because one would hope that the difficulties would have been ironed out in these various other processes. To add this further amendment at this stage would not add anything to the rights of the parent and would not actually add anything to meet the needs of the child.
§ Lord Renton
My Lords, I am grateful to those noble Lords who have supported this amendment. I am also grateful to my noble friend Lady Young for her obviously careful and thoughtful explanation of the Government's point of view with regard to it. This is a matter on which I fear we must agree to differ, but I would not wish to press your Lordships to go through the Division Lobby this morning on the last Friday in July. So far as I am concerned, honour would be satisfied if we allowed this amendment to be negatived. I beg to move.
§ On Question, amendment negatived.
§ 12.7 p.m.
§ Baroness Young moved Amendment No. 18:
Page 6, line 23, leave out ("notify the parent of the child concerned, in") and insert—
("serve on the parent of the child concerned—
§ The noble Baroness said: My Lords, this amendment is in response to the query raised by the noble Baroness, Lady David, in moving an amendment on similar lines to this one at Committee stage about the absence in the Bill of any specific duty upon the LEA to provide parents with a copy of the statement, once made, and to notify them of their right of appeal. She will recall that I promised to look at her point in principle and bring forward a suitable amendment if possible. As I indicated in replying to her Motion, we are fully satisfied that Clauses 7 and 8 could not be (and indeed I am sure would not be) interpreted by LEAs in such a way as to enable them to withhold from the parents the details of the final statement or information on their right to appeal. However, I am happy to meet the noble Baroness on this point and to make it explicit in the Bill that the LEA should give parents a copy of their child's statement, and inform them in writing of their right under Clause 8(1) to appeal against the special educational provision specified in the statement. I beg to move.
§ Baroness David
My Lords, all I can say is that I am very grateful to the noble Baroness that we have this firmly and clearly stated in the Bill.
§ On Question, amendment agreed to.
§ [Amendment No. 19 not moved.]
§ Baroness David moved Amendment No. 20:
Page 7, line 13, leave out subsection (4) and insert—
("(4) The decision of an appeal committee on any such appeal shall be binding on the local education authority by whom the decision on appeal was made, and on the governors of any county or controlled school at which the committee determines that a place should be offered to the child in question.").
§ The noble Baroness said: My Lords, we now come on to appeals. I moved a number of amendments on Clause 8 late at night during the Committee stage of the Bill and withdrew them for, I hoped, a more auspicious moment for them to be put to the vote and not because I was convinced by the Minister's reply.
§ The amendment I am now moving is different in wording from those I put down before, but similar in intent. In fact, it does follow the words of Section 7(5) of the 1980 Education Act. The effect is to make the appeal committee decision binding on the LEA when it is dealing with cases of children with statements, just the same as it is binding for those without statements. If we leave the Bill as it is, there is discrimination against those perhaps 2 per cent. of children who have statements, and I consider that unjust. I should like there to be positive discrimination for them, and this is given them by their further right of appeal to the Secretary of State. Incidentally, I should like to ask the Minister whether, if parents of ordinary children (if I may so refer to them) were thoroughly dissatisfied, they could appeal to the Secretary of State under Section 68 of the 1944 Act? Maybe the Minister could answer that when she replies.
§ The Minister said the appeal committee might be so constituted that there would be no experts in special education on it. In our discussion on Amendment 898 No. 85 that I put down in Committee in an attempt to put that right, I was told that the Government did not believe it right to specify in the Bill who should constitute the appeal committee, although agreeing that it would be desirable to have someone with knowledge of special education on it.
§ The noble Viscount, Lord Ridley, suggested that advice on this matter could be included in guidance to local authorities, and the noble Baroness said that she would be happy to look at that. Assuming that that is going to happen, that is the reason why I have not put that amendment down again. So I hope that the argument that the appeal committee will not have suitable people on it can be brushed aside.
§ The other argument was that the decisions the appeal committee would be considering would not be precisely the same as they would be for other children. Of course, they will be not precisely the same. Surely a local authority worth its salt and putting a reasonable case to the appeal committee should be able to put it over in such a way that a sensible conclusion is reached.
§ If the LEA does not have the skill to put its case in a form that layman can understand, then perhaps it ought not to be accepted. I do not see the appeal committee as a tribunal or like a magistrates' court where those on it sit in judgment. It is rather a body that will listen to the parents and the LEA and endeavour to elicit new facts and feelings that may not have been clear to those who decided on the school or provision in the statement. I do not see this committee having sharp differences of opinion.
§ We seem to be legislating yet again for the odd, bad and unreasonable parent and in favour of the local authority. We hope that cases going to appeal will be very few. Could we not put our trust in the appeal committee and this once bring the balance down in favour of the parent?
I should like to remind the Minister of what she said in Committee (at col. 505 of Hansard of 6th July):
one of the firm impressions I came away with after the discussions on that Act"—
she was speaking of the 1980 Act—
and the many discussions we had particularly on the needs of children with special educational needs, was that as far as possible we should make things, and make the Bill we were thinking of, apply in a similar way to children with special educational needs as, for want of a better term, to ordinary children".
I hope that the noble Baroness will act on that now and accept my amendment. I beg to move.
§ Baroness Young
My Lords, I have listened with care to what the noble Baroness, Lady David, has said about the powers of appeal committees. I cannot pretend that this is an easy area to deal with in legislation. On the one hand, proper weight must be given to the detailed assessment that will have been carried out by a team of professionals; and, on the other, we are anxious to give parents a right of appeal which is real and not just cosmetic.
In considering the difficult issues which arise over appeals, I believe it is helpful to bear in mind what will have preceded the appeal and that parents will have reached this stage only after close consultation during the process of assessment and specific consultation on the LEA's proposals, at the time when they receive 899 a copy of the draft statement and then have yet a further opportunity to make further representations and have meetings with the professionals concerned. So this is a very long process before we get to the statement.
Secondly, I would remind the House that appeals in this area are not going to be relatively simple choice of school cases of the sort for which new provisions were introduced in the 1980 Education Act for ordinary schools. Parents of children with statements will be appealing against special educational provision and the argument may well go far wider than the actual location of where that special educational provision is to be made. Appeal committees therefore may well be faced with complicated issues spanning the vast range of handicapping conditions. Given the range and variety of complex issues which might conceivably be placed before them, we can never ensure that an appeal committee will be composed of the people with precisely the kind of expertise which may be required in each case to reach a definitive decision.
I should like at this stage to reassure the noble Baroness that the point that I made about guidance is one that we shall bear in mind because clearly it is very important that we should have the right people on appeal committees. While I believe that appeal committees will be able to deal appropriately in cases where the parent is clearly misguided in his appeal, it is going to be much more difficult for them to overturn the balanced opinion of a range of experts involved in the multi-professional assessment, particularly after the long process of consultation with the parent.
Nevertheless, there will be occasions where the appeal committee has reasonable doubts about the LEA's decision as to the special educational provision in a particular set of circumstances. In these cases, the committee can refer the matter back to the LEA with their observations, and the Bill then places LEAs under a duty to reconsider the case. If after the LEA have reconsidered the case, which might well include some further assessment of the child and an alteration of the child's statement, the parent is still dissatisfied with their proposals for meeting his child's special educational needs, then the Bill provides for the parent to have yet a further appeal to the Secretary of State. This is a specific right of appeal which is not available under the 1980 Education Act to parents of, if I may use the term, ordinary children.
Perhaps I could further clarify the point about opportunities for appeal and say that, if a parent were dissatisfied with the result of an appeal under the 1980 Act, he could complain to the Secretary of State under Section 68 on the grounds that the LEA were acting unreasonably or under Section 99 on the grounds that they were in default of a duty. The decision of the appeal committee is binding on the authority under the 1980 Act, so there is that difference.
Clearly at this stage—that is to say when a parent of a child with special educational needs has appealed, and is dissatisfied—the Secretary of State must be in possession of all the facts of the case and hence subsection (7) requires him to consult the LEA. In this way the Secretary of State will have access to any observations made by the appeal committee. With this explanation, I hope that your Lordships will accept that far from discriminating against the parents of children with statements, the provisions of the Bill 900 give them more rights and more protection than the parents of children without complex learning difficulties.
I hope that the House will accept subsection (4) as drafted. I can assure your Lordships that we have thoroughly examined what is a difficult area over a long period in consultation with all the advisers available to Government and we believe that we have struck the right balance between careful assessment and parental rights. It is for these reasons that I cannot accept the amendment. I hope that the noble Baroness, Lady David, will feel able to withdraw her amendment. I must tell her that the Government cannot accept it.
§ Baroness David
My Lords, I am afraid that I am not convinced by the case. If the LEA have a really good case, it should be capable of putting it over to the appeal committee. Then they would decide in favour of the LEA, of course. I still feel that I should like to press this amendment to give the parents this little bit of positive discrimination.
§ 12.19 p.m.
§ On Question, Whether the said amendment (No. 20) shall be agreed to?
§ Their Lordships divided: Contents, 47; Not-Contents, 80.901
|Amherst, E.||Kilmarnock, L.|
|Ardwick, L.||Kinloss, Ly.|
|Aylestone, L.||Kirkhill, L.|
|Banks, L.||Lawrence, L.|
|Barrington, V.||Lee of Asheridge, B.|
|Beswick, L.||Llewelyn-Davies of Hastoe, B.|
|Boston of Faversham, L.||McCarthy, L.|
|Clancarty, E.||Mackie of Benshie, L.|
|Collison, L.||Maybray-King, L.|
|Cooper of Stockton Heath, L.||Mishcon, L.|
|Darcy (de Knayth), B.||Oram, L.|
|David, B.||Ponsonby of Shulbrede, L. [Teller.]|
|Davies of Leek, L.|
|Elwyn-Jones, L.||Robbins, L.|
|Ewart-Biggs, B.||Sefton of Garston, L.|
|Hale, L.||Stamp, L.|
|Hanworth, V.||Strabolgi, L.|
|Hatch of Lusby, L.||Underhill, L.|
|Henderson, L.||Wallace of Coslany, L. [Teller.]|
|Houghton of Sowerby, L.|
|Ingleby, V.||Wells-Pestell, L.|
|Jeger, B.||Whaddon, L.|
|Jenkins of Putney, L.||Wigg, L.|
|John-Mackie, L.||Wigoder, L.|
|Abinger, L.||de Clifford, L.|
|Ailesbury, M.||De Freyne, L.|
|Alport, L.||Denham, L. [Teller.]|
|Auckland, L.||Derwent, L.|
|Avon, E.||Digby, L.|
|Balfour of Inchrye, L.||Dilhorne, V.|
|Bellwin, L.||Drumalbyn, L.|
|Belstead, L.||Effingham E.|
|Bessborough, E.||Ellenborough, L.|
|Cockfield, L.||Energlyn, L.|
|Colville of Culross, V.||Faithfull, B.|
|Cork and Orrery, E.||Ferrers, E.|
|Cottesloe, L.||Ferrier, L.|
|Craigavon, V.||Fortescue, E.|
|Crathorne, L.||Gainford, L.|
|Cullen of Ashbourne, L.||Gardner of Parkes, B.|
|Dacre of Glanton, L.||Gisborough, L.|
|Davidson, V.||Gormanston, V.|
|Gowrie, E.||Pender, L.|
|Hailsham of Saint Marylebone, L.||Penrhyn, L.|
|Holderness, L.||Renton, L.|
|Home of the Hirsel, L.||Renwick, L.|
|Hornsby-Smith, B.||Rochdale, V.|
|Hylton-Foster, B||St. Davids, V.|
|Killearn, L.||Sandys, L. [Teller.]|
|Kinnaird, L.||Sempill, Ly.|
|Lindsey and Abingdon, E.||Skelmersdale, L.|
|Long, V.||Spens, L.|
|Lucas of Chilworth, L.||Stradbroke, E.|
|Lyell, L.||Strathcarron, L.|
|McFadzean, L.||Swinton, E.|
|Macleod of Borve, B.||Trefgarne, L.|
|Mancroft, L.||Trenchard, V.|
|Marley, L.||Trumpington, B.|
|Marshall of Leeds, L.||Vickers, B.|
|Melville, V.||Vivian, L.|
|Murton of Lindisfarne, L.||Ward of Witley, V.|
|Norfolk, D.||Westbury, L.|
|Northchurch, B.||Young, B.|
|Nugent of Guildford, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ [Amendments Nos. 20A and 21 not moved.]
§ Clause 9 [Requests for assessments]:
§ 12.27 p.m.
§ Baroness David moved Amendment No. 22:
Page 8, line 13, at end insert—
("(3) Notwithstanding the provisions of section 4(2) of this Act, subsection (1) of this section shall apply if a young person (whether or not he is registered at a school) or, where the authority are satisfied that the young person is not capable of expressing a request for the purposes of this section, the parent, asks the authority to arrange for an assessment to be made of the young person's educational needs in further education.").
The noble Baroness said: My Lords, the group of amendments we are now coming to, Nos. 22, 23 and 24, all deal with 16-to-19 year olds. I want also to refer to Amendment No. 26, which adds to the definitions in Clause 20 that of a "young person" as,
a person over compulsory school age who has not attained the age of 19 years.
I shall deal first with Amendment No. 22, which adds a third subsection to Clause 9, which deals with requests for assessments. As the clause stands, the right to request an assessment by a parent of a 16-to-19 year old under the original Clause 9 is restricted to that young person being still registered at a school. The purpose of the amendment is to widen the clause, and the new subsection permits the young person to make the request whether or not he is still registered at a school, and permits the parent to make the request, where that is deemed necessary, when the young person is not registered at a school. The words,
whether or not he is registered at a school
are put in to emphasise the purpose of the amendment and the fact that young people themselves can make the request even when they are still registered at a school, which they could not do under Clause 9(1). Only a parent would be able to make a request under that subsection. There could easily be a situation where a 16-year-old has left school but then changes his mind and decides he would like to go on to further education or training. This would make it possible to have an assessment in such circumstances. It gives
the young person, if he is capable, the right to have a say and to make decisions about his own future. It broadens the possibilities for the 16 to 19 age group.
I moved a number of amendments at Committee stage probing the Government's intentions about the 16-to-19 year olds and what they plan for children with a statement after the child ceases to be of compulsory school age. I was not satisfied with the replies from the Minister, who is prepared to wait for new legislation before the very great needs of this age group are dealt with properly and these young people have what I believe are their rights. The Minister said at col. 1495 on 17th July 1981:
… 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.".
§ The situation is that those who have left school are in limbo. The local authority will be obliged to take account of any demands—no more. They need do nothing, and that does not seem to be satisfactory. I believe that this group of young people who may not wish to stay on at school, where the provision may not be suitable for their needs, should have the rights that their fellows of the same age in school have. This is recognised in the document The Legal Basis for Further Education. I do not think it right that in this Bill which is based on the Warnock Report, in which the needs of the 16 to 19s were marked as a priority area, we should do nothing to help and encourage them to pursue further education or training. This is even more important now than when the Warnock Report was published, as unemployment has increased so dramatically, particularly in the case of young people, and young people of the kind that we are discussing. The Minister, when pressed, could give no promise that there would be a Bill in the next Session. We really cannot wait for two or even three years for this so necessary action.
My Amendments Nos. 23 and 24 follow almost exactly Sections 65B and 65C in Clause 4 of the Education (Scotland) Bill. I think that No. 24 is self-explanatory. It looks to the future provision for children with statements after 16. It provides for a compulsory appraisal of each young person during the period beginning two years before he ceases to be of school age, or during the period two years before if staying on at school after 16. The compulsory reappraisal is therefore tied to the anticipated leaving date, when that is relevant, and will overcome the situation which concerned the Minister in Committee, at col. 1496 of the Official Report, when she said:
… 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."—[17/7/81.]
That was referring to my new clause, as it was then, but we have added a piece to cover that point. The
last part of subsection (3) covers that. So we have dealt with that difficulty.
§ Any intended regulations as stated by the Minister, which would stipulate an assessment within the two years before a child leaves school, will not place a duty on the LEA to report and make recommendations on what provision would benefit a child after ceasing school. Likewise, any such regulations cannot stipulate the participation of the young person at this stage of assessment, which is enshrined in Amendments Nos. 23 and 24. We feel that he should have the right to participate, if he is capable of so doing.
§ Before a young person is required to submit to any procedural assessment, his consent must have been obtained in all those cases where the young person is capable of expressing an informed view. 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. As assessments are to include medical examinations and, for example, psychological assessments, it seems appropriate that a requirement which makes it essential to seek the consent of the young person is extended to cover all procedures. We suggest that the appraisal should have taken place so that it is finished six months before he leaves, to allow time for his future education or training to be properly planned.
§ The other right which these amendments give is for the child or his parent to be informed that the statement could be discontinued, if they so wished. Finally, it gives the young person the right to have his fees paid at a further education establishment, if he is on a course that he starts before his 19th birthday. He would then be receiving free education, as do his contemporaries at school, which seems fair. Most authorities, I believe, do pay these tuition fees, but some to not and I feel very indignant about that. There should be no anomaly and I should like to guard against it. This, again, is in line with the recommendation in The Legal Basis for Further Education.
§ The noble Baroness said in her reply in Committee that she did not wish to suggest that the Government think the position as it stands is the right one. In fact, I think the point about all these amendments is that we agree on what needs to be done and that the 16 to 19s should have a fair deal. It is really only in the timing that there is a difference. The Minister would wait until there is a Bill published based on The Legal Basis for Further Education, and what the noble Lord, Lord Renton, and I feel is that to wait two or three years is very unfair to that age group. My Lords, I beg to move.
§ 12.48 p.m.
§ Lord Renton
My Lords, I should like to support the noble Baroness, Lady David, on this series of amendments which she has explained so succinctly. Although they cover a great deal of detail, I support them in principle. I think it is right to stress that this was one of the three priorities of Warnock and is really the only one which has not been fully dealt with in the Bill, unless it be said that the training of teachers, 904 which is not a matter for legislation, was another one. But so far as this one is concerned, we should bear in mind that this was a Warnock priority.
I am sure that the noble Baroness, Lady David, was quite right in predicting that we would not get legislation for two or three years if we had to wait for the consultative process. The mills are grinding slowly within Government circles. Indeed, I see no hope at all of legislation on this matter in this Parliament. I would expect my noble friend Lady Young, in spite of the fact that these amendments were moved in only slightly different form at the Committee stage, to want to have time to consider the details still further.
May I say that I personally am committed more to the principle than to some of the details. I am not entirely happy, for example, about the timescale envisaged in subsection (3) of Amendment No. 24, where it is suggested that the work should be done between two years and six months before the termination of school age. Those periods might well be shorter and I have mentioned this to the noble Baroness, Lady David. But on the general principle of making local authorities apply their minds in good time to the question of the continued education of those between 16 and 19, I think that something should be done.
The noble Baroness is to be congratulated on the way in which she has, after very careful consideration and, no doubt, on a good deal of expert advice, formulated these amendments I hope that my noble friend Lady Young will say that, even if she does not accept the amendments at this stage, she would like to use the long Recess, and all the opportunities of careful thought which it gives, to consider this matter further so that we may return to it at the Third Reading stage. It is a well-known fact that under our rules of procedure Governments are always given—and rightly given, in my opinion—a special forbearance so far as amendments are concerned at Third Reading, if those amendments are moved by the Government in pursuance of an undertaking, at least to consider, given at Report stage. Therefore, I trust that we may receive a favourable response from my noble friend.
§ 12.40 p.m.
§ Baroness Young
My Lords, the House will know that we have already debated at length the question of extending the Bill to cover further education. I am very well aware of the concern which has been felt about this. I have of course read the Warnock Report. I recognise, as my noble friend Lord Renton said, that Mrs. Warnock and her committee felt that this was a priority area. It is an area to which, as the noble Baroness, Lady David, quite rightly said, the Government attach great importance. However, as the noble Baroness will know, at present the Government are consulting on the legal basis of further education.
It is difficult when you are in the process of consulting people about a document to pick out one part of it to put into legislation before one has completed the period of consultation. So it seems to me to be important once again to show what it is that we believe can be done for young people aged 16 to 19 with special educational needs who wish to continue their education after 16. It would be quite wrong to believe, as seems 905 to be the implication of some of the remarks which have been made during the course of the passage of this Bill through Parliament, that young people will somehow be out in the cold and have no education because we cannot extend the Bill to cover further education.
We propose that in the longer term, regulations will be made under Clause 7(7) by which local education authorities will be required to arrange for at least one assessment for a child who is the subject of a statement at both the primary and secondary stages of his education. In the shorter term, the minimum requirement will be that a reassessment takes place within two years of the child leaving school. The purpose of such an assessment would be to ascertain the older child's needs, bearing in mind his forthcoming transition to post-compulsory education, to employment or to some other placement such as an adult training centre or a work preparation course. The assessment will serve to guide the young person and his parent on practical possibilities post-16.
However, as noble Lords are aware, under the existing law local education authorities must ensure that suitable provision is available either in school or in further education for young people aged 16 to 19 who ask for it. The school-leaving assessment will be necessary for the young person who wishes to continue his education, either at his own request or that of his parent.
In practice, Amendment No. 22 would affect two groups. There are those young people who have been recognised as having special educational needs while at school but who have left school and are now seeking to continue their education; and there are those who were not in special need at school but who have suffered an accident or illness since leaving school and want to resume their education. As the law stands, the local education authority has a duty towards such people up to the age of 19. In practice they will not be able to carry out that duty without first identifying the young person's needs and abilities. I recognise that the report on the legal basis of further education recommends that there should be a right to ask for an assessment, but it would not be right to assume that the machinery of this Bill would be appropriate. In any case, I believe that it would not be right to anticipate decisions on the recommendations of that report.
The noble Baroness also spoke to Amendments Nos. 23 and No. 24. I should like to assure her on Amendment No. 23, which is a new clause, that subsections (1) and (2) of this amendment are unnecessary so long as the child remains at school. However, I appreciate that it is the intention of this amendment to extend some of the provisions of the Bill into further education. As I have already indicated, we have had to acknowledge that the whole of the legal basis covering the provision of further education requires review.
Perhaps I could turn now to Amendment No. 24, another new clause. I have already indicated that it is the Government's firm intention to make regulations as to the frequency of assessments under subsection (7) of Clause 7 of the Bill and to stipulate that a reassessment must be undertaken no more than two years before a child is expected to leave school. The 906 importance of this is that a major part of the intentions of that new clause will be met by regulations.
The clause, however, goes on to place local education authorities under a duty to send copies of their reports on school-leavers to numerous other bodies. We do not believe that this would be realistic. Subsection (8)(a) would require a local authority, as local education authority, to notify themselves in another capacity, as outside the Inner London area the local education authority and the local authority are one and the same body in law.
Subsection (8)(b) requires the local education authority to send copies of their report to the health authority. I find it difficult to envisage the circumstances in which this would be necessary. All in all, subsection (8) seeks to establish what I can only describe as a rather bureaucratic arrangement which we believe would be of little benefit to the school-leaver.
The noble Baroness, Lady David, referred in particular to subsection (10) which seeks to impose a system of mandatory awards in favour of the child with a statement, whatever the nature of the course he wishes to pursue. This would run counter to the policies of successive Governments. Mandatory student awards are at present confined to certain designated courses, although local education authorities have discretion to make awards to students and others.
The amendment would entail a major change in making awards mandatory in respect of individual student's circumstances rather than in respect of the level of the course. A substantial increase in public expenditure would be involved and other disadvantaged groups would argue, quite properly, that similar concessions should be made to them. The amendment would moreover extend mandatory awards, albeit on a restricted basis, to the 16 to 19 age group and to part-time courses, neither of which is at present generally eligible. So the implications of this amendment for the mandatory student support system are very considerable. We do not believe that changes of such a magnitude should be made on such a narrow basis in this Bill. The needs of handicapped young people in the age group are, we believe, best dealt with by local education authorities under their existing discretionary powers.
The noble Baroness also touched very briefly on Amendment No. 26. This amendment would define "young person" as somebody over the compulsory school age but under 19. There is, however, a definition in the 1944 Act which has to be construed with this Bill, which defines "young person" as somebody over compulsory school age who has not attained the age of 18. If, therefore, Amendment No. 26 were to be carried, there would be two different definitions applying to different parts of the Education Acts. This would be undesirable and is a situation which we believe should be avoided.
I am very conscious of the concern felt over the 16- to 19-year-olds and I have given this lengthy explanation to show what in reality will happen to those pupils with special educational needs who wish to continue their education either in school or in further education. The Government accept the importance of this, an importance which is particularly great in the present economic situation, and the importance of young people being well qualified to get jobs. 907 We do not see the proposals on further education as going into the indefinite future, but my noble friend Lord Renton will understand that I cannot commit the Government to what they will say in the Queen's Speech or, indeed, about their further legislative programme.
I should like to assure the House that we accept the importance of this area. We believe that there are ways in which the problems and, quite rightly, the educational needs of young people can be met. We shall not, I hope, have any unnecessary delay over the process of consultation on our document. However, I believe it is right that we should carry this out properly and, when we have an agreed basis, that we should go forward on it. For that reason, I feel it would be quite inappropriate to include further provisions in the Bill until this whole process has been completed.
§ Baroness David
My Lords, the Minister's response was almost as I expected, but even so I am still disappointed. I should have thought that, if we had passed a clause in this Bill to do something for the 16 to 19 age group, it could have been repealed, as certain items in the 1980 Act are being repealed in this Bill. With regard to the definition of "young person", I should have thought that could have been dealt with by repealing "up to 18" in the 1944 Act. In fact "16 to 19" seems to be a more appropriate definition of a young person than "up to 18".
So far as the fees are concerned, I did not ask for mandatory awards. There was a new clause among my amendments at Committee stage, but I did not put that back at this stage. All this subsection asks is that local authorities should pay the tuition fees in respect of the young person's attendance at such institutions of full or part-time education as shall be recommended, so that they would be courses which the LEA had decided would be in the proper interests of the young person. I hope that these fees are already paid by a great many authorities.
I feel that at this time on a Friday morning it is not right to pursue this matter so although I shall not withdraw the amendment I shall, as the noble Lord, Lord Renton, did earlier, allow it to be negatived.
§ On Question, amendment negatived.
§ [Amendments Nos. 23 and 24 not moved.]
§ Clause 10 [Duty of health authority to notify parents etc.]:
§ 12.52 p.m.
§ Baroness Darcy (de Knayth) moved Amendment No. 25:
Page 8, line 24, leave out subsection (2) and insert—
("(2) In a case falling within subsection (1) above the authority shall inform the parents as soon as possible after identification of the handicap and again after six weeks, in writing, of the services provided by government departments, public bodies and voluntary organisations which in the opinion of the authority are likely to be able to give the parent advice or assistance relating to the needs of the child and his parent.").
§ The noble Baroness said: My Lords, I move this amendment, not in a spirit of ingratitude towards the Government's amendment agreed to in Committee 908 but with a desire to do the best for the child and its parents and a conviction, after the discussion in Committee, that our amendment was an improvement on the Government amendment. I am only sorry that the Minister was unable to withdraw her amendment and to have consultations with us at the time. Our amendment has been redrafted, with many thanks to the noble Lord, Lord Renton.
§ There is no question as to whether one can place a duty on the health authority. The Minister made that very clear at column 1518, and her amendment also does that. I think this amendment is an improvement upon the Government's amendment, in the first place because after six weeks you have to inform the parent of the handicapped child in writing. I think that is helpful because, as the noble Lord, Lord Banks, said at column 1512, the parent may not be in an emotional state to take in the information on the first occasion. Incidentally, at the Committee stage I should have stressed that the first time of informing, in our amendment, was meant to be verbally. I quite agree with the Minister that a first approach in writing is too formal but I think it is helpful to have it down on paper later.
§ Another reason why I think this amendment is an improvement on the Government's amendment is because it will inform the parent of the statutory as well as the voluntary services. The Minister, at column 1513, said, "Of course, the statutory organisations will be aware", but, as the noble Lord, Lord Renton, said, the parents may not be aware at this stage of the services available. I have talked to Mr. Daffyd Wigley, who, like the noble Lord, Lord Renton, knows only too well the problems of handicapped children, and he feels that this should be written into the Bill.
§ This amendment retains the flexibility of the Government amendment. At column 1513 the Minister said that we should not require the health authority to give parents information which might be irrelevant to their needs, and this amendment does not do that either, because your Lordships will see the words, "which in the opinion of the authority are likely to be able", et cetera.
§ I am sorry to keep quoting the Minister, but I want to cover all the points that she made. At column 1515, when explaining the words in the Government amendment, "a particular voluntary organisation", the Minister said that this was because there might not be a local branch of a particular national organisation, and she will see that our amendment does not specify a local branch either, so it is equally flexible. Again at column 1515 the Minister said that it might not be an appropriate organisation at all, so this amendment would be an improvement because they would have a duty to inform them of the statutory organisations.
§ I really do hope that your Lordships and indeed—although this may be in vain—the Minister, now that she has had time to reflect, will feel that this amendment is more comprehensive than the Government's amendment but at the same time allows the same degree of flexibility. I beg to move.
§ Lord Renton
My Lords, I should like to support the noble Baroness, Lady Darcy (de Knayth), in this 909 amendment. But, before I come to that, may I say that, although we dealt with this at Committee stage, I hope that I am not wasting time by just briefly repeating what I said then. I think it was a good thing to get Clause 10(2) added by the Government and, speaking as the chairman of one of the largest voluntary organisations, naturally I eagerly saw the words "a particular voluntary organisation" in the Government's amendment which is now subsection (2), and I assume that that means either the national or the regional or the local part of that organisation.
One other comment that I wish to make relates purely to the drafting of subsection (2). It is remarkable: we have done more than a hat trick. If we turn to page 8 of the Bill we find that the first four subsections on that page all start with the word "If". I have always thought that the word "if" is one which should be rather sparingly used in legislation. It always suggests a hypothesis, and we should not normally legislate more upon hypotheses than we have to. Therefore, I give humble warning that at Third Reading I shall try to make that part of the drafting a little more elegant, but meanwhile I pay my tribute to the draftsman for his general work on this Bill. I think it has been extremely well done and I hope I may be forgiven for making that very small point.
I now come to the present amendment, No. 25. which of course goes very much further. Some people might think that it goes a little too far in writing into legislation detailed instructions to be given to local authorities; the kind of instructions that might in the normal way be given in an administrative directive by a Government department or by just leaving it to the local authority to be as zealous as it possibly can. So, having said that, why do I nevertheless support this amendment, even to the extent of having put my name to it? I do so for two reasons: first, one must accept the distress which some parents, not always well-educated, generally young, will feel about the revelation of mental handicap that will have come to them and because of the knowledge of the need, which explained in detail at Committee stage, that the parents will have—a need which, as I tried to explain with the aid of statistics, is not met as often as might be expected. That is my first reason for supporting this somewhat detailed amendment.
My second reason is that it was an amendment which found favour in another place among members of all parties. It was something which the Government undertook to consider further, and further consideration has simply resulted in subsection (2) of Clause 10, whereas, if my noble friend Lady Young felt that she could go a step closer to what was wanted by members of all parties in another place and is now proposed by the noble Baroness, Lady Darcy (de Knayth), then a great many people would be pleased. I support this amendment.
§ Lord Banks
My Lords, I should like to add my support very briefly for this amendment. Like the noble Baroness, Lady Darcy (de Knayth), and the noble Lord, Lord Renton, I am glad that we have in Clause 10(2), but, like them, I prefer the amendment which, as they have pointed out, is more comprehensive. I think it is important to have Government 910 departments and public bodies included with voluntary organisations under this heading, and I think it is important to have the second notification, for reasons which I mentioned at Second Reading and to which the noble Baroness referred. I also think it is important to have the second notification in writing so that the parent will have something to refer to when the need for help perhaps becomes more immediate; perhaps what has been said verbally is not remembered, and there the parent will have something in writing which can be referred to and which has been received at a time when the parent is perhaps more ready to think about the importance of the back-up support that is available. So I am very happy to support this amendment.
§ Baroness Jeger
My Lords, we support this amendment. Most of the arguments have already been very well deployed. In the first place I agree with the noble Lord, Lord Renton, that by beginning this clause with the word "If" there is the possibility of creating an alibi for some official who may not be 100 per cent. in keen pursuit of his or her work. We do think that putting in a time limit is important. Also, the linking of Government departments, public bodies and voluntary organisations all together in the clause would, I think, go some small way towards more integration and co-operation. For these reasons we support the amendment.
§ Viscount Ingleby
My Lords, I should like, also briefly, to support this amendment. It seems to me the parents need to know of every possible supportive organisation, and the authority could indeed indicate which of the organisations concerned they thought would be most helpful in the particular case concerned.
§ Baroness Young
My Lords, I do not think it has often been my experience in speaking either for the Government or indeed for the Opposition on legislation, that the Government have actually brought forward an amendment to meet the concerns expressed in another place and in this House to find that the House is dissatisfied with it and wishes to rewrite the amendment, rather on the basis, which I thought was well put by the noble Lord, Lord Winstanley, that three-quarters of a loaf is usually better than no bread. In this particular case, I think the way that Clause 10(2) has been drafted does actually meet the point that was made, certainly to me and certainly as a result of discussions in another place about the role of the voluntary organisations.
The Government recognise—I recognise—anyone who has had any experience in the field of handicapped children recognises and understands the real distress of parents on learning that they have a handicapped child. Nobody doubts that at all. This clause is designed to help parents in the very early days with support organisations. I think it should be seen in that light. The noble Lord, Lord Renton, in speaking to this amendment, said that he thought that it might look as if we were placing a rather heavy bureaucratic administration on local authorities, and I think this is true. In fact, the amendment that is before the House is very similar to one moved in another place by Mr. Clement Freud.
911 Our response in regard to this has been Clause 10(2), which has come about as a result of discussions in another place and subsequently about the role of voluntary organisations, because we recognise that there is a need for advice to be available to parents of handicapped babies. Very often, however, that advice needs to be given in response to a particular problem when it arises, rather than being tucked away in a pile of pamphlets handed out to them at the maternity hospital and possibly put aside because the parents are too preoccupied with the new baby to settle down and study them. What we believe is needed is a source of advice on tap. This source of advice may be the health visitor, and in most cases I suspect it will be the health visitor; it could be the local office of the DHSS, or it could be a voluntary organisation. We think, therefore, that it would be helpful if the health authority could give the parents the piece of information; namely, the name of the voluntary organisation, if there is one, which is likely to be helpful to them in their particular circumstances.
I hope that in considering this amendment your Lordships will bear in mind two things. We have before us an education Bill; it is not a social services Bill. Secondly, I hope your Lordships will bear in mind the need for flexibility in the response the health service makes in respect of individual parents. Health authorities have handicapped teams specifically to deal with the sort of problems we have discussed, and hospital social workers have a very important role as well. I must tell the House that the Government are not able to accept this amendment. We do believe that it is a much more bureaucratic approach than the amendment we have brought forward on voluntary organisations. We believe that the way the Bill is drafted does give a much more flexible approach to meet what we all recognise as very real problems.
I shall comment on the drafting points made by my noble friend Lord Renton only to say that of course much of this Bill is concerned with certain specific cases. I think that is why subsections begin with the word, "if", because they do not necessarily apply appropriately in every case or mean that some activity follows upon it. It is because we wish to see flexibility, which was surely one of the keynotes of Mrs.Warnock's report, that the Bill has been drafted the way it has. I hope the House will accept the Government amendment as it stands in Clause 10, and will feel that it does meet the needs, which we recognise as important ones, of parents with handicapped babies.
Baroness Darcy (de Knayth)
My Lords, I should like to thank the Minister for her reply. I really had hoped that we could in one aspect at least have the whole loaf for the child with special educational needs. I am very grateful to all noble Lords who have spoken, and I think it does show how strongly they feel how much better our amendment is. However, I am perfectly sure that the speeches here and the support expressed is not indicative of what the voting would be. I do not propose to divide the House, but I will allow the amendment to be negatived.
§ On Question, amendment negatived.
§ [Amendment No. 26 not moved.]912
§ Schedule 1 [Assessments and statements of special educational needs.]:
Baroness Darcy (de Knayth) moved Amendment No. 27:
Page 16, line 12, leave out ("and transfer") and insert ("transfer and discontinuance").
§ The noble Baroness said: My Lords, the Minister will be pleased to hear that this is purely a probing amendment seeking clarification of something which she said at Committee when I spoke to a similar amendment. One of the circumstances in which an LEA would cease to maintain the statement, the Minister explained at col. 1549, was if the child went to live outside the area of the authority which made the statement; the records could be passed on, but it would be for the new local education authority to decide whether to make a statement. From this explanation it would appear that a child who has a statement in one area might not need it in the next. In paragraph 3 we see that the statement is, broadly speaking, divided into two parts: first, assessment of the child's special educational needs; and secondly, the special educational provisions to be made for meeting his needs.
§ In Committee, at col. 550, the Minister explained the factors governing a local education authority's decision whether or not to determine special educational provision for a child, and said that this would be based on the nature and extent of the provisions they make as a matter of course in their ordinary schools for children with special educational needs, on the geography of the area, the distribution of population et cetera. In the case in question—the child moving from another area—the needs have not changed. As the Minister said, again at col. 550, the main factors in deciding whether to make a statement must be the needs of the child.
§ I absolutely agree that the needs of the child are of paramount importance. Yet, from the Minister's explanation, it would appear that at the end of the day the determining factor as to whether a statement is made on a child is the educational provision available in his area. I very much hope that the Minister can reassure me that that is not so. I beg to move.
§ Baroness Young
My Lords, I am very happy to try and clear up any misunderstandings that there may be on this part of Schedule 1. It might be helpful if I explain again the circumstances in which a local education authority will cease to maintain a statement. This may happen if the 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 and the statement ceases to have any effect because the original authority will no longer be responsible for the child's education. If the child has moved into the area of another local education authority, which is the most likely circumstance, then the original authority may pass on his records, but there will be power under paragraph 4 to make regulations about this and it will be for the new authority to decide whether to make the statement.
Secondly, the statement will lapse if the child is over 16 and leaves school. Thirdly, the authority may change its mind about the child. That may be as a result of the annual review or as a result of a request 913 by the parents for a reassessment. But before that happens, the authority must, under paragraph 6 of Schedule I inform the parents of their intention and give them the opportunity to make representations.
I do not believe that we need to have regulations about discontinuance: in two instances this will be automatic and in the other instance there is provision made for it in the Bill. I hope that I have met the concern of the noble Baroness about this part of the schedule. However, once again, if on reflection she finds that there are further points I would be very happy to write to her.
Baroness Darcy (de Knayth)
My Lords, I should like to thank the Minister for her reply, but I am extremely disappointed in it: it is exactly what I had feared. I only asked about the first circumstance in which a statement would be discontinued if a child moved to another area. The noble Baroness has given me the same explanation of those circumstances as she did in Committee. It appears to me that the special educational provisions existing in ordinary schools in the area is the determining factor as regards what will be the special educational provision for the child. It is very gloomy, because it only goes to show how necessary were all our amendments on planning, ensuring access, special educational provision in ordinary schools and reporting on progress. Having probed and found what I think is lacking in the Bill, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.