HL Deb 29 June 1992 vol 538 cc594-613

3.1 p.m.

Lord Campbell of Alloway

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

Moved, That the House do now resolve itself into Committee.—(Lord Campbell of Alloway.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 1 [Assessment of special educational needs]:

Baroness Blackstone moved Amendment No. 1: Page 1, line 10, at end insert (", wherever possible,").

The noble Baroness said: I am aware that under a Private Member's Bill it is not normal practice to group amendments. However, I should like to speak to Amendments Nos. 1 and 6 together because they are clearly linked. I hope that that will be acceptable to the Committee.

To begin with I wish to repeat what I said at Second Reading. There is no sense in which we on this side of the Committee wish in any way to let local education authorities off the hook on speedy resolution of the problems that parents face in obtaining statements for children with special needs. Any parent faced with the need to obtain a statement about their child's special educational needs wants the matter to be resolved as soon as possible. It is unsatisfactory that there should be long delays and it is now apparent that there is need for considerable improvement in this respect.

At Second Reading we did not have available the report of the Audit Commission and HMI on provision for pupils with special educational needs. It is now available to us. One point that emerged from the report is that in the 12 local education authorities that were surveyed in the study there are unnecessary delays and we must do something about them.

Perhaps I may quote paragraph 54 on page 26 of the Audit Commission/HMI report: The deficiencies in the processes of assessment and issuing statements mean that some of the principal provisions of the 1981 Act are not being implemented. In particular, the concept of a timely, meaningful assessment of a child's needs, followed by a clear statement and guarantee of help has largely not materialised. Out of 12 LEAs, the implementation of the statutory procedures has broken down almost completely in one, has been virtually ignored in another, and in a third the level of demand is out of control. Most of the remaining LEAs are falling far short of an adequate performance in most of the measures detailed in this section".

Clearly this is a highly regrettable situation which must be rectified. Thus it is even more important that we should try to make the six-month requirement stick which is already contained in government guidelines to local education authorities.

However, as I said at Second Reading, there are clearly exceptional cases where it may be difficult because of their enormous complexity and because of the problems of local authorities in obtaining both evidence and advice from a wide range of agencies beyond the local education authority, and it is important that we build in a little flexibility in handling matters. Local authorities may have to go to a variety of health service professionals. They may have to go to the social services department, to the courts or the probation service when a somewhat older child has been in trouble with the law. The purpose of Amendment No. 1 is to insert "wherever possible" into the provisions of the Bill.

Having said that, I have considerable sympathy with what the Minister said at Second Reading. She suggested that: The Government have decided, therefore, that there should be comprehensive provisions for regulating the time and way within which authorities carry through the whole process from initial notification to the LEA that an assessment might be necessary to the issue of a final statement… but [the Government] believe that the precise provisions should be set out in regulations rather than primary legislation". —[Official Report, 11/6/92; col. 1409.]

We on these Benches accept that. I believe that it is the most appropriate way of handling rather difficult and complicated issues of this kind. However, if we are to amend primary legislation, we should like to ensure that a little flexibility is built into the provision. Hence our proposals for something along the lines of Amendment No. 6. Again, we are not wedded to the precise words of the amendment and it is possible that other Members of the Committee or the Minister may wish to bring forward an improvement.

However, we seek something that ensures that local authorities cannot be neglectful and dilatory in dealing with these cases. We want something which forces them to inform parents of any delay in their procedures and to produce a clear timetable as to how they will deal with the problems.

The amendment also requires a local education authority to make interim arrangements for the child's educational provision so that parents are not left with no specific provisions available while statements are being finalised.

I hope that these two amendments will be acceptable to the Committee. They are designed to leave the six-month requirement in the Bill but to allow for some exceptions, which I believe ought to be few, but within a structure which puts pressure on the LEAs to get on with the job and to inform the parents. I beg to move.

Lord Campbell of Alloway

As the noble Baroness said, Amendment No. 1 is related to Amendment No. 6. Paragraph 54 of the Audit Commission report, published by the department, sets the seal of approval on all our endeavours in this Chamber on the Bill.

I am concerned with the discipline of the drafting of the Bill. Amendments Nos. 1 and 6 could be treated as an alternative to Amendments Nos. 2 and 4 in my name. However, the hope is that that is not the noble Baroness's intention. Strictly speaking, as a matter of drafting, Amendments Nos. 1 and 6, together with Amendments Nos. 2 and 4, could be carried into the Bill without any form of inconsistency. If any tidying up process were to be needed —and it is thought that there would be none—the matter could be dealt with at Report stage.

Both sets of amendments, Amendments Nos. 1 and 6 and those in my name, Amendments Nos. 2 and 4, seek to import a degree of extra flexibility in accordance with the view of the majority of your Lordships expressed on Second Reading, including, I seem to remember, my noble friend the Minister. However, there are some objections to Amendments Nos. 1 and 6 as they stand. Perhaps further consideration might be given to the drafting for although such is by no means the intention—as the noble Baroness has said, she wants to make the measure stick—these Amendments Nos. 1 and 6 could well remove the spur of urgency and provide an all too welcome feather-bed for procrastination. I ask the question, who will decide what is possible; presumably the LEA with a quiver full of excuses, and eventually the court on judicial review? However, by then there will be further delay and the expense that is inevitably involved in all litigation. Litigation must be the last resort.

I should like to ask another question. As regards Amendment No. 6, who will decide how long it must be after the period of six months has expired before the letter to the parents is to be written? Again it will be the LEA, and the same problem arises. I ask the Committee respectfully whether this extra concession to the LEA, by means of Amendments Nos. 1 and 6, is either appropriate or indeed requisite in the light of Amendments Nos. 2 and 4 which stand in my name. It is most respectfully thought that that is not the case. At all events, before Amendments Nos. 1 and 6 are carried into the Bill, perhaps the noble Baroness would consider—she has generously said that she has an open mind on this matter and she is not wedded to any precise form of words—the objections that I have raised in the two questions that I have asked. I take the same point as the noble Baroness took. There should be a clear timetable and no more of this dilatory attitude. There should be interim measures. The Government suggested on a previous occasion that there might be a comprehensive regime of regulation. Well, we shall have to see about that. However, at this stage my hope is that, in their present form, these amendments should not be carried into the Bill. However, I would welcome them if they were made to bite a little harder.

Lord Elton

We shall no doubt have to deal with the mechanics of this matter in detail on Report. As my noble friend has said, we may have to resolve the matter on Report. However, something more should be put on the record with regard to the admirable report published by the Audit Commission and Her Majesty's Inspectorate. I may be ignorant in this field, but it is the first report that I have seen in which the Audit Commission has teamed up with another group of specialists to provide a joint report. It is an excellent piece of work and it is most lucidly presented. It is thoroughly supportive of my noble friend's proposed legislation. It adds force to the arguments of both my noble friend and the noble Baroness on the urgency of pressure being applied, particularly to local authorities.

Paragraph 26 of the report states: The length of time it takes to complete the assessment and issue the statement is the principal reason why the process is not valued". The report then gives what I consider a perfectly horrific illustration of what happens in real life. This passage is not in italics, but I consider it to be horrific. It states: In the worst case, the parent of a seven year-old-child will not, on average, receive the details of the assessment until the child is 10 years old, by which time most of the information is out of date". I should have thought that by that time all of the information would be out of date.

We are also told that the main delay arises in the administrative processes of the LEA. The lack of management information in LEAs on the time taken to complete the process illustrates the lack of priority given to the process. The report continues: The situation is exacerbated by the in-built financial incentive to delay the completion of statements … some LEAs are likely to continue to regard the issuing of statements as an administrative task which does not warrant management attention, instead of seeing it as the cornerstone of the rights of parents and children". My noble friend rightly holds the latter view and he has sought to express that view in the Bill.

As regards whether the two proposed routes forward are in sympathy, I daresay other Members of the Committee will have had little time to consider the way the machinery interacts in the Bill. I am warmly supportive of my noble friend's proposal. I wonder whether the drafting of Amendment No. 1 in the name of the noble Baroness may not have been done with a slight eye askance to the Marshalled List, as the earlier one strikes in a Bill the better one's chances of getting the first amendment in the business. That is a nice place to be. If the noble Baroness has achieved that object and put her point forward now, she could perhaps, by amending her amendment for a later stage of the Bill, return to this matter with an amendment which is more specifically in sympathy with the view of my noble friend. In that case she would be helping us all.

3.15 p.m.

Lord Addington

I support the noble Lord, Lord Campbell of Alloway, on this matter. I believe the noble Baroness has blunted the teeth of this Bill. I can understand why she has proposed her amendments. I also understand that there are anxieties about this issue. There is always, too, the problem of funding in this area. That must be borne in mind, but a child who has the problems we are discussing must be dealt with as fast as possible. Every time a delay arises the problems of that child will be compounded. In the end one will probably waste more money and resources than if one deals quickly with the problem. To delay taking action is false economy. Overall, costs will be saved by dealing with these problems quickly. That moral applies to all parts of the Bill.

A child's future will be far better served by rapid treatment. There is the possibility of schools becoming more selective. Therefore it is quite possible that a pupil who receives insufficient help early on will find his entire educational career is ruined through being put into the wrong school. We need to offer help to pupils as rapidly as possible. I am possibly talking about the whole ethics of the Bill rather than the amendments that we are discussing, but when we consider the rest of the Bill it will help us to remember those ethics.

It is never easy or cheap to deal with the problems that we are discussing. However, in the long term it is much cheaper to deal with them quickly and this Bill allows for that. The amendments of the noble Lord, Lord Campbell, are flexible enough to allow the problems to be dealt with quickly. The amendments of the noble Baroness would soften the Bill and allow the provision of incorrect assistance.

Lord Rix

Whenever I see the words "wherever possible" my blood runs cold as they mean that a coach and horses can be driven through legislation. The words "when resources allow" also make my blood run cold. Those words often lead to ineffective legislation. I hope that the noble Baroness will reconsider these amendments. We understand the problems facing LEAs but we also understand the far greater problems facing parents and children. For far too long parents and children have been denied their right of access to this form of statementing. If the form of education that children require is missing in their early years, their future prospects are ruined.

Baroness Faithfull

I, like the noble Lord, Lord Rix, am worried about the words "wherever possible". I understand the desire of the noble Baroness to obtain flexibility but those words can be so widely interpreted that the process we are discussing might go on for a long time.

I should like to raise a second point. I believe that the work can be done within six months. If a child appears before a court in another context the court asks for a report on the child as to why he or she has come to court and what will happen to the child afterwards. Social workers in the social services department have to make that report for the court within about four weeks. I believe that local authorities can make the assessments within six months and I do not believe that they should take longer.

The Earl of Radnor

I am in complete agreement with the noble Lord, Lord Rix. I believe that a strong line should be taken here and that possibly the noble Baroness might think again about her amendments. She said herself that the six-month period must be made to stick. Then in her amendments she provides the means for it to come unstuck. The words used in the amendment seem to provide an opportunity to make excuses. That is surely what has been happening since 1981. There have been endless excuses. I accept that there have been problems with funding but I do not believe that such problems will ever be overcome until the matter is faced. It is a serious position for a child to have to wait for ever for assessment. As my noble friend Lord Elton said, it is utterly ridiculous and totally wrong for a child to have to wait from the age of seven until it is 10. The time has come not only to wave the big stick but to bring it into action and to leave the Bill broadly as it is presently printed.

Lord Elton

I not only say that it is wrong: it is cruel. The state and the local education authority are under a duty to provide a suitable education for the child and for three years the child may have been receiving the wrong education, which must be a disaster.

Baroness David

I agree with all those who have spoken that it is desirable that the assessment and the statement should be made within a period of six months, and preferably in a shorter time. However, I remind members of the Committee that at Second Reading a great many pleas were made for flexibility. The noble Lord, Lord Elton, himself, the noble Baroness, Lady Warnock, my noble friend Lady Blackstone, the noble Lord, Lord Addington, and I all made such pleas and the Minister said that we should not be too rigid.

I should like to draw the attention of the Committee to Amendment No. 6 which states that if the authority does not provide the assessment within six months it must give reasons. The amendment provides that: the authority shall write to the parents specifying a date by which the assessment shall be completed and offering guidance as to the educational provision that the child may receive". Therefore, it forces the authority to take some action at that point.

The Audit Commission report points out that it is not always the local authority which causes the problems because other agencies such as the health authority, psychologists, social services etc. may have to contribute. Therefore it may not be entirely the fault of the LEAs. I hope that those points will be taken into consideration.

Lord Elton

Perhaps I may come to the aid of my noble friend, should he need it. I did indeed suggest that there should be flexibility because I recall as a Minister always being anxious when no alternative was given where one was needed. The problem is controlling the alternative. If the noble Baroness will look at Amendment No. 4 in the name of my noble friend she will find that there is a degree of flexibility. It is very tight, and she may think it too tight. I do not believe that it is too tight. The circumstances must be exceptional but one must provide for the exception. My noble friend has done that. Therefore, I do not think that we need to be worried about flexibility.

What is attractive about the amendment of the noble Baroness, Lady Blackstone, is the idea that the authority should be under a duty to do something when the circumstances are exceptional to mitigate the results of those circumstances. I see that slender part of her group of amendments adding to the effectiveness of the amendments in the name of my noble friend rather than working against them.

Lord Rix

Am I not right in saying that until such time as a definitive statement is made and acted upon the cost of educating the child in terms of providing the additional equipment falls on the school? Therefore, there is every reason for the LEA to delay such a statement by making half-hearted promises. I believe sincerely that the amendments are contrary to the spirit of the amendment Bill.

The Minister of State, Department of Education (Baroness Blatch)

I rise in the expectant silence in the Chamber simply to say that this is a Private Member's Bill and that I made very clear that the Government are addressing many of the points which have been raised and many others which are not before the Committee today. The combination of the Audit Commission report—and I agree with my noble friend that it is a very positive report and is very helpful at this time—and the efforts and determination of my noble friend Lord Campbell has done much to further the debate and to give it the impetus which this Chamber has been calling for for some time. We shall be addressing all of those points both in a consultative paper and in a Bill later this year. For those reasons I shall neither oppose nor support the amendments.

Baroness Blackstone

Of course we should be very happy to work to try to improve on the amendments between now and the Report stage of the Bill. In my earlier remarks I made it clear that we are not wedded to any particular aspects of the drafting of the amendments. All we are trying to do is to ensure that there is some flexibility and we are not too rigid.

I accept entirely that there is a case for further defining what is required both in Amendment No. 1 and Amendment No. 6. However, I should like to reiterate that there is no intention on this side of the House to try to reduce the pressure on local education authorities to deal with these cases as fast as possible. That is not their purpose. We are concerned to avoid poor and inadequate assessments of certain very difficult cases where all the information is not available because local authorities have not been able to get all the agencies concerned to provide it. There is nothing in the Bill which gives the local education authority the power to obtain from a health authority professional or a social services department important information that may be required. Therefore, we are being a little harsh on the local authorities in making the requirement. That could lead to the danger of a poor assessment of a child who is then inappropriately placed because the case has not been adequately considered.

I was somewhat surprised by what the noble Lord, Lord Rix, said. I can see that he might be worried by Amendment No. 1. Other noble Lords have also suggested that it might be too open ended. However, the purpose of Amendment No. 6 is to try to make sure that local authorities which go over the time limit in exceptional cases, for very good reasons, should explain why they have done so and make interim arrangements. I should have thought that that was helpful for the parents.

I do not believe that most local education authorities will want to delay. If the Bill goes through there will be a great deal of pressure on them to avoid doing so. There may be some sense in asking local authorities to publish statistics giving simple data concerning the number of cases which were not dealt with within the six-month period. It would be easy to do that and to find out quickly which local authorities were failing in their duties because there were too many such cases. It would then be possible to ask HMI to investigate those authorities which had failed in that way. There are other measures which could accompany the amendments to ensure the flexibility and lack of rigidity which are needed and at the same time ensure that the local authorities are not delaying unnecessarily.

I shall he happy to take away these two amendments and reconsider how we can improve them and perhaps put their positive aspects together with those amendments that have been put forward by the noble Lord, Lord Campbell of Alloway. In the light of those comments, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Campbell of Alloway moved Amendment No. 2: Page 1, line 11, leave out ("within six months of the expiry of such period").

The noble Lord said: I have spoken to this amendment, which received a measure of support in this Chamber. I beg to move.

On Question, amendment agreed to.

Lord Campbell of Alloway moved Amendment No. 3: Page 1, line 12, leave out ("educational needs of") and insert ("special educational provision that should be made for").

The noble Lord said: This is a formal correction, spoken to on Second Reading. I beg to move.

On Question, amendment agreed to.

Lord Campbell of Alloway moved Amendment No. 4: Page 1, line 12, at end insert: ("(a) within six months of the expiry of such period, or (b) in exceptional circumstances within such extended period as shall have been granted by the Secretary of State prior to the expiration of the six month period by a reasoned decision which has been brought to the attention of the parent before the expiration of the six month period.").

The noble Lord said: I have spoken to this amendment. I beg to move.

Baroness Blackstone

I wonder whether we could consider this amendment in the light of what I said earlier. We might want to incorporate some aspects of our Amendment No. 6 and see whether we can come up with a slight improvement to what is now on the Marshalled List.

Lord Campbell of Alloway

I welcome that suggestion and shall deal with it with an open mind. Perhaps we can consider it on Report.

On Question, amendment agreed to.

Baroness David

I understood that the noble Lord, Lord Campbell of Alloway, intended to withdraw the amendment so that we could discuss his amendment and the amendment of my noble friend Lady Blackstone together before Report stage.

Lord Campbell of Alloway

No, I am not prepared to withdraw the amendment.

The Chairman of Committees

Amendment No. 4 has been settled.

3.30 p.m.

Lord Rix moved Amendment No. 5: Page 1. line 12, at end insert: ("( ) If, after making an assessment of the educational needs of a child, the local education authority decide to determine the special educational provision that should be made, the authority shall, within the period of six months referred to in subsection (6) above, make a draft statement for discussion with the parents of the child concerned.").

The noble Lord said: The intention of this amendment is to require local education authorities to produce, within the six months mentioned in the Bill, a draft statement of the special educational needs of the child for discussion with the parents. It is my understanding that, as the Bill is currently written, the LEA will only be obliged to assess the child to decide whether or not it will determine the educational needs within the six months written into the Bill.

While that is indeed welcome, it does not deal with the main problem which parents contacting MENCAP or RADAR are experiencing; that is, receiving the statement once the need for one has been agreed. During the Second Reading debate I mentioned the plight of a family which received agreement from the LEA within a month that a statement should be produced but did not in fact receive a statement for over three years. That is clearly unsatisfactory. By incorporating this amendment I hope to ensure that the Bill remedies that problem.

I am sure that the Committee is aware that the problem was highlighted only last week in the joint report of the Audit Commission and Her Majesty's Inspectorate of Schools, which states that even the best performing local authorities are taking 50 per cent. longer to assess special needs than the Government's guideline of six months. Since no LEA is meeting the Government's deadlines, there is a clear problem which must be addressed. One of the key recommendations is that statutory time limits for the completion of assessments and statements should he set with redress for parents if LEAs do not complete them on time. I agree.

I also welcome the statement made by the department in response to the report and the statement today from the noble Baroness that the Government intend to issue regulations on this issue and to consult widely on the subject. I look forward to seeing the regulations. This amendment may be premature but the debate is long overdue.

I understand the concerns expressed at Second Reading with regard to placing too strict a time limit on LEAs for the production of assessments. I am aware that this amendment may be seen as only adding to their burden. The reality has not changed! and will not change for those children unless some pressure can be brought to bear on both those who carry out the work, the LEAs, and those with resources, that is to say, the Government.

I do not claim that this is a definitive amendment to rectify the problem. However, I am wary of get-out clauses which could allow the authorities to postpone this procedure. I beg to move.

Lord Renton

I wish to support the amendment moved with clarity and strength by the noble Lord, Lord Rix. To my mind the need for it arises to a very considerable extent from the fact that local education authorities—one cannot blame them—always have to experiment. They experiment in bringing children with special needs into ordinary schools and they experiment in setting up special schools. They tend to take their time over doing so.

It is right, as the noble Lord said, that there should be a statutory time limit of the kind set down in this amendment. I know of one case of a special school, which had been running very well for a good number of years, where the building happened to be in need of physical reconstruction. There were no plans to build another special school so it was decided to do a dispersal job. It was intended to send most of the children to an ordinary school (hopefully but not wisely) and to disperse the children who obviously could not be placed in an ordinary school to a special school some distance away from the children's homes. That was clearly an unsatisfactory situation. I am glad to say that the local people who were involved made strong representations to their Member of Parliament, who happens to hold a very high position in our society, and to others. The local authority was persuaded to change its mind.

There was nothing in the law as it stood which required the local authority to make assessments within a specified time, or to discuss and implement them. This amendment goes a long way toward achieving that. It is my hope that the Committee will accept it.

Lord Campbell of Alloway

In view of the two authoritative speeches that have just been made by noble Lords who know very much more than I on this subject, I welcome this extension to the general intendment of the Bill. I congratulate the noble Lord, Lord Rix, in managing to get this measure within the scope of the Bill. It is of great practical significance. It brings parents at a much earlier stage into the arena of discussion as to the welfare and interest of these children.

As for the burden on the LEA, the noble Baroness, Lady Blackstone, put forward—as she always does—a totally reasonable and logical argument on the problems facing the LEA. At this stage I merely point to my Amendment No. 18 which is designed for implementing regulations to be issued. One but only one of the reasons for this implementation provision is to deal with this kind of problem: how the LEA is to get its information and so on.

I hope that the Committee will accept this remarkably useful amendment.

Lord Elton

Reading this text I am becoming anxious. As I understand it, the critical moment is not the moment at which the local authority decides whether or not a particular provision is needed, but the moment at which it issues a statement to that effect. Everything that my noble friends and others are trying to do at the moment is encouraging them to make the decision. That is what they have to do within the six months.

The amendment of the noble Lord, Lord Rix, proposes that the local education authority: shall … make a draft statement". But the statement is only in draft and it is only for discussion with the parents of the child concerned and that discussion can take place at any time. Therefore he has not put an end to the process at all. He has carried it out of the six months and into some undefined period during which discussion may take place. It is when the statement is issued that administrative action has to flow and money has to be dedicated or spent. That being so, will my noble friend and the noble Lord, Lord Rix, consider whether changes are needed both to the amendment and to the Bill as drafted so that the provision focuses not on the assessment, the decision or the discussion, but on the issuing of the statement? That is when action has to follow.

Baroness Darcy (de Knayth)

Perhaps I may support my noble friend Lord Rix and the noble Lord, Lord Elton. I agree that we are talking only about a draft statement. Therefore there is room for considerable time lapse before the definitive statement.

I consulted the Independent Panel on Special Education Advice (IPSEA) which is very experienced in such matters. I had wondered whether one should include in the Bill a second date by which the definitive statement should appear. IPSEA believed that while it is right that parents should have time to question and discuss the draft stage, it would not be appropriate to set a time limit in the Bill.

However, it might be helpful if in guidance the department could emphasise that LEAs should be businesslike in their discussion and aim for finalisation of the statement within another three months. IPSEA said that nine months from the decision, the making of an assessment and the finalising of the statement is a reasonable length of time.

Lord Elton

I beg noble Lords to turn their face against guidance. Guidance is easily ignored. What we need is legislation on the statute.

3.45 p.m.

Baroness Blatch

I was appealed to directly. I shall therefore respond to my noble friend. Perhaps he will understand that I do so without prejudice to my own position on the Bill and the fact that the matters will be addressed.

My noble friend is right that what we want is all possible haste to a full determination of the provision for a child. It is also worth considering an even faster track when the diagnosis is relatively straightforward and there is full agreement with the parents and all the agencies concerned with the child. One can then proceed with all haste to a decision on a faster timetable.

The timetable to which we refer today relates to delays for whatever reason. My inclination is to agree, without prejudice, not to guidance but to secondary legislation. I take the point that the noble Baroness, Lady Blackstone, made. She agreed with the argument for not moving such matters into primary legislation because of the rigidity and poor flexibility that that entails, but the issue needs the backing of some kind of legislation. I prefer to go for secondary legislation. I say that without prejudice because we shall address the matter in a consultation paper and with legislation in the autumn.

Lord Campbell of Alloway

I thank the Minister. That is music to the ears of those of us who have striven. It is a great step forward that the issue should be dealt with by secondary legislation. I am very grateful to the noble Baroness.

Lord Renton

I confess that I have some doubt about the matter. We have control over the expressions used in primary legislation. We cannot amend secondary legislation. When such legislation comes before Parliament, we in this Chamber do not vote against orders. We are obliged to accept them, especially if they have been through another place.

It is a practical matter; but it is an important matter of principle that the practice should be right. I confess that I cannot share the enthusiasm of my noble friends Lord Campbell of Alloway or Lady Blatch for secondary legislation as a way of dealing with the issue. I prefer the amendment of the noble Lord, Lord Rix, or something on those lines. Even if the drafting does not appeal to my noble friend on the Front Bench, I should have hoped that she would keep an open mind about the desirability of making provision in the way that the noble Lord, Lord Rix, suggests.

I should have thought that in the circumstances the best plan might be for the noble Lord, Lord Rix, to suggest—I hope that I do not presume too much in mentioning it—that he is glad that the principle is accepted but, rather than agreeing here and now to the issue being provided for in secondary legislation, that he and the Government should get their heads together and make provision for it in primary legislation at Report stage.

Lord Campbell of Alloway

There has been a total misunderstanding, so far as I am concerned. Either I failed to explain myself with any form of clarity or I have been misheard.

The position from my point of view is this. I agree that the amendment of the noble Lord, Lord Rix, in its present form or some similar form, should be in primary legislation. I have already said so; and I have already stated that I support it. Therefore let us leave that source of confusion alone.

The question then is whether implementation of the principle should be undertaken, for example, along the lines of my amendment, Amendment No. 18, by implementing regulations, or, as has been suggested by the noble Baroness, by guidance. Guidance is a form of anathema to me. Therefore I was delighted to have in this context what I understood to be music to my ears: that the matter would be dealt with by implementing legislation.

That is my understanding of the situation. When my noble friend Lord Renton rose, it appeared that I had made a total muddle of the whole situation. I therefore am extremely grateful to the Committee for allowing me to put it right.

Baroness Darcy (de Knayth)

Before the Minister replies, perhaps I may clear up a matter in case I too was misunderstood. I started out to make a speech totally in support of the amendment of my noble friend Lord Rix. However, I became slightly diverted by the argument of the noble Lord, Lord Elton.

I am totally in support of my noble friend's amendment. I agree with what the noble Lord, Lord Elton, said about arriving at a final statement within a period. I believed that it was perhaps not right to incorporate that provision in the Bill but in guidance. However, I am totally in favour of my noble friend's amendment.

Lord Renton

Perhaps I owe an apology; I am not quite sure, but I shall try to make one.

I had misunderstood the meaning of the intervention of my noble friend Lady Blatch. We shall read Hansard with interest tomorrow. I had thought that she was saying that instead of the amendment of the noble Lord, Lord Rix, she was going to rely on Amendment No. 18 and have secondary legislation in order to achieve those provisions. But if it be the fact that we shall have the best of both worlds, then that is music also to my ears.

I hope that with that clarification, any misunderstanding may have been removed.

The Earl of Radnor

The amendment of the noble Lord, Lord Rix, was tempting at first. However, I am sure that the noble Lord, Lord Elton, and the noble Baroness on the Front Bench are right. We want to keep our eye on the main chance. We do not want drafts and suggestions. We want the assessments to be accomplished within six months. Then the parents will know the position for certain.

Lord Elton

Perhaps the noble Earl will forgive me. We keep referring to assessments. The executive moment is the statement that embodies the assessment. We want that on the record.

The Earl of Radnor

That is now on the record. Finally, because I hate it in principle, let us have as little secondary legislation as possible.

Baroness Blatch

Perhaps the noble Lord, Lord Rix, will forgive me. I know that the noble Lord will have a right of reply when winding up on his amendment, and what I say may be helpful. I shall also do what I said this afternoon that I would not do: that is, to get involved in the detail of some of the amendments.

I wish to point out to my noble friend Lord Renton an important distinction. Any secondary legislation that flows from a subsequent Bill, whether this Bill or the Government's Bill to be introduced in the autumn, must be linked to a principle in primary legislation. The provision needs to be set out. The issue that is continually emphasised by my noble friend Lord Elton is worth re-emphasising. The point from which executive action flows will be the definitive statement. In debating the amendment we are talking about an assessment and saying that within six months something shall happen. There will he a further period of time beyond that before a definitive statement is obtained. I believe that we are all speaking to the same objective but that we are somewhat confused about the means to the end.

Lord Rix

I thank the noble Baroness for her remarks. I wish to crave the indulgence of the noble Lord, Lord Campbell of Alloway. He said that guidance was anathema to him. Perhaps he will offer me some guidance now because, being a new boy to the Committee stage structure, I am at sixes and sevens. Shall I now withdraw my amendment so that the noble Lord can strengthen it or shall I leave it standing?

Lord Campbell of Alloway

As the noble Lord asks me, I say move the amendment.

Lord Rix

In that case, I hope that the amendment will be accepted—

Lord Elton

In order to protect that position I give notice that I shall seek to amend the provision when incorporated on Report in order to dispense with the weakness that I pointed out.

Lord Rix

I should be most happy about that. I beg to move.

On Question, amendment agreed to.

[Amendment No. 6 not moved.]

Baroness Blackstone moved Amendment No. 7: Page 2, line 3, at end insert: ("(8A) Where a new assessment is made, special educational provision determined or an appeal dismissed under subsection (8) above, the parent may appeal in writing to the Secretary of State. (8B) On an appeal under subsection (8A) above, the Secretary of State may, if he thinks fit, direct the local education authority to reconsider their decision.").

The noble Baroness said: As Members on these Benches said on Second Reading, the introduction of a local appeals procedure under the terms of the Bill would be a great improvement. The right of appeal to the Secretary of State should remain. The amendment mirrors the original right of appeal available under the 1981 Act. The Audit Commission/HMI report has been rightly praised by various Members of the Committee and I wish to endorse that praise. The report is excellent, although it is a little glossy and a great deal of money may have been spent on its production. I am surprised about that because the Audit Commission is always concerned with value for money.

The report makes clear that the role and responsibilities of local education authorities under the 1981 Act should remain unchanged, although overall implementation has been slow, bureaucratic and cumbersome. Therefore, a local appeals committee would be a significant improvement. However, as the Audit Commission report recognises, ultimate responsibility for the success of special educational provision in the UK must rest with central government and with the Department of Education.

The 1981 Act does not define triggers to implement an assessment leading to a statement. The Audit Commission report also argues for national guidelines on the threshold for formal assessment. On occasions there will be a need for the Secretary of State to take an overall view on an aspect of need which will provide a useful precedent for the whole service. Even where judicial cases arise as a result of a decision of the Secretary of State the cases benefit from the national view of the Department of Education. Therefore, a right of appeal to the Secretary of State is needed and should be maintained. The amendment reflects the Bill's intention to improve parental rights of appeal and it is entirely in the spirit of the Bill.

The amendment also raises the question of the right of appeal by local education authorities to the Secretary of State. Under the 1981 Act an LEA can only be directed to action by the Secretary of State for Education. It can present evidence that is specific to an individual case and relate that to the wider resource implications of a directive. The Bill as presently drafted allows the appeal committee to direct the LEA. The appeal committee could then make its decision on an individual case without having an overview, either political or economic, of the LEA's resources. Therefore, an appeal committee's decision might, for example, have the effect of skewing a whole band of provision away from the level which the LEA had determined for the pupils in that band. There is a case for the LEA also having recourse to the Secretary of State, given the wider implications of any appeal committee's decision. I wish to give notice that on Report we may wish to bring forward a further amendment allowing LEAs to appeal against an appeal committee which has altered the special education that was earlier determined by the LEA and its advisers.

The amendment is tabled in order to allow parents the right to a final recourse to the Secretary of State should they consider that their appeal to the local authority had been inadequately dealt with. I hope that it will be acceptable to the Committee because it is wholly within the spirit of the Bill to allow a parent to appeal in this way. I beg to move.

Lord Campbell of Alloway

This is the only matter on which I join issue with the noble Baroness because it runs counter to one of the main principles of the Bill. With the leave of the Committee I wish to speak briefly to Amendment No. 15, which also stands in the name of the noble Baroness, Lady Blackstone.

The effect of the two amendments is designed to ensure that the aspect of the right to appeal should remain. They are designed to ensure that the existing appellate structure to the Secretary of State provided for under Section 5(6) of the Act remains and that under Section 5(8) the Secretary of State has power only to direct the local education authority to reconsider. The reference to that aim appears at col. 1382 of Hansard of 11th June 1992. On Second Reading the storm cones were gently hoisted because it was apparent that that would be an issue of contention.

I have taken a view on the matter based on my practical experience in the courts. My experience is limited to that extent because I am not a social worker, nor do I know a great deal about local education authorities. My experience is purely practical. From my narrow standpoint this procedure is cumbersome and unsatisfactory. It operates on paper representation. There is no real hearing or legal representation and the parents are not able to attend. For that reason the Bill seeks to abolish the aspect of the appellate structure concerned with assessment and to give the reconstituted appeal committee power to amend the statement.

Originally the Bill provided for no appeal against the statement. But in deference to what was said in particular by the noble Baroness, Lady David, and other Members of the Committee I have had drafted into the Bill a new provision. Amendment No. 16 provides an appeal from the appeal committee to the Secretary of State in such circumstances. That is in deference to the views expressed on Second Reading by certain Members of the Committee that the appeal committee should not have the final say. That provision now appearing in the Bill, and having met the wishes of noble Lords to that degree, I hope that Amendments Nos. 7 and 15 may be given further consideration. As a result of my experience, limited as it is, I cannot conceivably accept that the Secretary of State's present appellate powers quoad assessments should remain.

4 p.m.

Baroness Blatch

I am sure that the Committee will accept that I am in something of a difficulty attending to the detail of the Bill. During Second Reading I foreshadowed all the points which the Government will address. I recently announced proposals to improve parents' access to the present arrangements for conducting assessments and making statements for children with special educational needs by regulating the time and way in which authorities carry out their duties. We are also planning to give the parents of a child with a statement the right to express a preference for their child's school. I also foreshadowed our thinking on the development of national criteria on assessments and statements. We shall be consulting on the development of such criteria and guidance as regards the 1981 Act.

At Second Reading, I also said that we were aiming to provide for a more coherent and comprehensive set of rights of appeal for parents who were not satisfied with the decisions made by local education authorities. The three main issues that we were tackling were: quicker redress; a more open and independent system in line with the Parent's Charter; and whether a single appeal body should replace the present two stage process. I can now announce that the Government will be bringing forward proposals to establish a new, independent tribunal to hear appeals from parents of children with special educational needs.

We have concluded that a tribunal system, rather than an enhanced appeal committee system, would better meet the aims that I set out, and better meet the legitimate expectations of parents to deal promptly and fairly with their appeals. A tribunal would offer a simplified structure by limiting the appeal process to only one tier while keeping the system relatively local. The time taken to consider an appeal should be reduced and that can only benefit the child and the parents. The legislation would make clear that the tribunal could not make decisions which involve the provision of services by health authorities or local authorities' social services departments.

We envisage that the tribunal would be established under a president and would sit as a number of tribunals having the same jurisdiction under regional chairmen. Membership would comprise a legally qualified chairman and two other members, one of whom would need to have expertise in special educational needs and the other one of whom might have experience in local government. In setting its remit, we propose to amend the 1981 Act to extend parents' rights of appeal. The tribunal would determine appeals against a local authority's refusal to assess or reassess a child; against an authority's decision not to determine the provision for a child in a statement; against the special educational provision specified within a statement. It would determine a new specific right of appeal against the school named in the statement; and against an authority's decision to amend or to cease to maintain a statement.

We propose that the legislation would enable the Secretary of State to make rules about the way in which appeals should be made to, and decided by, the tribunal.

On Second Reading, I foreshadowed our thinking on the development of national criteria on assessment and statements. Those national criteria would inform the tribunal's decisions, which is a point about which the noble Baroness was anxious.

As I promised before, we shall be consulting widely about all our proposals, including the establishment of a special educational needs tribunal. We shall shortly be issuing a consultation paper which will set out all the proposals for legislation in more detail. Our forthcoming White Paper about the future structure of the education service will also take account of pupils with special educational needs.

In the light of this statement, I shall neither support nor oppose amendments set out on the Marshalled List. I would prefer that noble Lords await the publication of a consultative paper and subsequent legislation in the autumn and that meanwhile the Bill should be withdrawn. I thank my noble friend Lord Campbell for his patience, determination and hard work which have gone into the preparation of this Bill. What happens now must remain a matter for the whole House. However, it needs to be said that there has been no public consultation on the detail of the Bill. The Bill needs to be withdrawn at some stage to allow wider consultation on its details and also on other details which concern not only Members of this Committee but also members of the public outside.

Baroness Masham of Ilton

Before the Minister sits down, when does she estimate that the tribunals will be operational? With all the consultation and so on, it seems to me that it may take rather a long time.

Baroness Blatch

We envisage that a consultation paper will be published next month. That will be followed by legislation which will come from the House of Commons to this Chamber round about November time. Those are the dates for which we are aiming. A reasonable implementation date would be one year following the passing of the Act.

Baroness Faithfull

Will the Minister clarify whether that means that the appeals committees will be abolished and there will just be a tribunal or does it mean that the appeals committees will stay and if there is confrontation, the matter will go to the tribunal?

Baroness Blatch

The intention is to sweep away the appeal system as it stands and to replace it with a one-tier appeal system which will be carried out through a tribunal system.

Lord Rix

Those of us from the all-party disability group and MENCAP —and I am sure other voluntary bodies also—welcome the idea of tribunals. We all welcome the announcement which the Minister made. Will the tribunals work from papers or, as I hope, will the people concerned be able to be present at the tribunals, because it is important that all parties concerned should be represented or should be able to speak for themselves?

Baroness Blatch

The noble Lord, Lord Rix, presses me on detail which properly belongs to the consultation process. The purpose of going out to consultation on the principle of setting up a tribunal is to allow interested parties to come back with the kind of information which the noble Lord is trying to elicit from me. The Government want an extremely effective system to enable people to receive a definitive statement as smoothly and as quickly as possible so that proper provision can be made which will benefit everybody.

Lord Campbell of Alloway

Perhaps I may try to help the Committee. The time element is important. It may be some time before the Government can act. However, it is a matter for the Committee as to whether it feels that the Bill should be withdrawn at this stage or whether it should go forward to Report stage so that the Government might have the benefit of further discussions. They can then produce something which is at least intelligible and which represents a tidying-up of the Committee's view. As a result of what I have heard, I accept that the Bill will have served its purpose and must be withdrawn. That is my view. However, I should prefer that the Bill goes to Report stage and that we should continue with our discussions. If it is your Lordships' wish, the Bill can then be withdrawn.

Lord Elton

As my noble friend says, this is a matter of timing. One must think when the Report stage will be. Presumably it will be either in the middle of or towards the end of the period of public consultation in October.

Lord Campbell of Alloway

The date provisionally given for Report stage is 15th July, before the House rises.

Lord Elton

I am obliged to my noble friend. Members of the Committee will wish to consider how much more wisdom we can contribute to the process. I regard my noble friend as a kind of Hercules who has picked up the Bill as a type of club. He has found the great rock of government movement poised on the edge of the hill; he has placed the Bill under it; he has manoeuvred it and it has started bounding down the slope. I believe that a great deal of what can be achieved has been achieved but I do not wish to impose my views upon the Committee nor to underestimate in any way the way in which my noble friend continues to add to our views on this complicated issue.

Baroness Blackstone

I support what the noble Lord, Lord Elton, said. I believe we have achieved a great deal already. We should all be extremely grateful to the noble Lord, Lord Campbell of Alloway, for introducing the Bill. Perhaps it has helped to put a little pressure on the Secretary of State and the Government to bring forward legislation as soon as possible.

The timetable seems to me to be reasonable, if there is to be a consultation paper some time in July. That will allow people to express their views about what should happen as regards the new proposals for a tribunal. This side of the Committee welcomes that proposal but, of course, we have not yet seen all the details. We shall of course want to see much more of the detail.

My feeling is that we had a good debate at Second Reading and have now started to raise some of the issues of detail in the Bill. To continue with the Committee stage and proceed to Report stage in the light of what the Minister said does not make a great deal of sense. It is difficult for the Minister to give us a reply in terms of what the Government are or are not prepared to do with the Bill. It must be withdrawn at some point in the light of what the Minister said. It seems to me, if I may say so to the noble Lord, Lord Campbell of Alloway, that it would make more sense to withdraw it now. To continue would be a waste of the Committee's time. In the meantime, I beg leave to withdraw Amendment No. 7.

Baroness Faithfull

I too support what has been said. In the light of the remarks of my noble friend the Minister some of the amendments now do not apply. One would not be able to discuss them or, if one did, it would be a pointless exercise. I therefore agree with my noble friend.

Lord Addington

I suggest that we have covered much of the ground we had in mind to cover. I do not believe that we can put much more into the Bill at this point. The fine detail prepared by most of us has run into a brick wall of government co-operation. Although I am not legally trained in any way, I suggest that we have probably done as much as we can.

Baroness Blatch

Perhaps my noble friend will forgive me for intervening. I say this in advance of not knowing what he is going to suggest and simply to deal with a matter of process and procedure from here on. If the Committee decides to continue then we continue. If so, we should take the Statement following Amendment No. 7 and then resume the Committee stage of the Bill. However, if your Lordships decide that the Bill should be withdrawn at this stage, it is important that those who have tabled amendments on the Marshalled List should systematically withdraw them. The House should then resume and the Bill should be withdrawn at that point.

Lord Campbell of Alloway

I am a servant of the Chamber. I believe that the view expressed is right. I am prepared to withdraw the Bill, it having served its purpose, subject to the formalities required and the withdrawing of the amendments.

Baroness Blatch

I am grateful to my noble friend and can promise him that if he wishes to have personal involvement with my department and officials in talking over some of the detail of the Bill, I can explain that to him and to any other interested parties in the Chamber.

Amendment, by leave, withdrawn.

Clause 1, as amended, agreed to.

The Deputy Chairman of Committees (Lord Strabolgi)

If your Lordships agree, I intend to take the Committee rapidly through the Bill in a couple of minutes and dispose of it in that way. We cannot abandon it halfway through.

Clause 2 [Composition of appeal committee]:

[Amendments Nos. 8 to 12 not moved.]

Clause 2 agreed to.

Clause 3 [Extension of parental rights of appeal]:

[Amendments Nos. 13 to 16 not moved.]

Clause 3 agreed to.

Clause 4 [Variation of statement: provision of information]:

[Amendment No. 17 not moved.]

Clause 4 agreed to.

[Amendments Nos. 18 to 20 not moved.]

Clauses 5 and 6 agreed to.

Schedule [Sections 5 and 8 of the Education Act 1981, as amended]:

[Amendments Nos. 21 to 25 not moved.]

Schedule agreed to.

House resumed: Bill reported with amendments.

Lord Campbell of Alloway

My Lords, I beg leave to withdraw the Bill.

Bill, by leave, withdrawn.