Lords Sitting of 29 April 1993

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Worcester.

Women's Refuges: Funding
Earl Russell Earl Russell asked Her Majesty's Government:
Whether they have any plans to encourage the provision and the funding of women's refuges.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, the provision of funding for women's refuges is primarily a matter for local agencies.
Earl Russell: My Lords, I thank the Minister for that reply. Is she aware that in this country we still have only 284 refuges—approximately 30 per cent. of the number recommended by the Select Committee in another place in 1975 even though recorded levels of domestic violence are far higher than they were in that year? When she costs any proposals for improvement, as she must, will she take into account the cost of not making any improvement in that regard, especially the amount involved in taking children into care?
Baroness Cumberlege: My Lords, the noble Earl is absolutely right. There is anxiety about this issue. There is anxiety why the Minister of State at the Home Office, my honourable friend Michael Jack, is establishing a ministerial group on domestic violence. I am sure that the issues the group will look at will include the availability of accommodation and the way in which the law is framed and how improvements can be made.
Lady Kinloss: My Lords, will the Minister agree that it makes economic sense to fund centrally authorised refuges for abused women? Is she aware that the present diversity of funding makes matters extremely difficult because no one source of funding is guaranteed on a yearly basis? Will she also look into safe housing for abused women and their children following Bristol University's report on local authorities' response to domestic violence, which is published today?
Baroness Cumberlege: My Lords, the report will be fully published in two weeks' time. At present it is only a press release that has been issued. We wish to look at the report carefully. However, I understand that the report examines only four local authority areas in detail. It is clearly therefore a small-scale report and we must look at its recommendations in that light. As regards central or local funding, the Government believe that local funding provides the best solution because it is sensitive to local needs. However, we must take into account that some women do not wish
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to be housed locally in a refuge because they are fearful of violence from their partner. I am sure that my honourable friend's group will look at those issues.
Baroness Jay of Paddington: My Lords, does the Minister agree, given the new group that is being set up, that it would be helpful if the Department of Health and other departments were to urge the Government to make the guidelines under the Housing Act statutory so that there would be the possibility of influencing local authority funding and local authorities could not escape what would have become a statutory responsibility to fund women's refuges? That would give an understanding that there was special provision for women and children at risk.
Baroness Cumberlege: My Lords, some local authorities are doing very well on that front. Today I visited the local borough of Southwark, which has not been one of the favoured children in terms of local authority action. However, since last week that borough has not had a single person in bed and breakfast accommodation. It is clearly dealing well with the issues at this time. If that borough, which has some of the highest indices of deprivation, can do it one wonders why other authorities cannot do it also. With regard to the code of practice, the Department of the Environment is planning to monitor the operation of the code which clearly gives sound advice. Some authorities are following the code and are proving to be successful in that regard but others are not.
Baroness Hamwee: My Lords, will the Minister accept that there is considerable welcome among the various agencies concerned for the proposal to set up an interdepartmental group? The Minister will recognise that the matter crosses departmental boundaries. Will the Treasury be a part of that group?
Baroness Cumberlege: My Lords, I believe that that will be the case.

North Sea Oil and Gas: Tax Policy
3.10 p.m.
Lord Ezra Lord Ezra asked Her Majesty's Government:
What is their policy on oil and gas exploration in the North Sea, in the light of proposed changes in the petroleum revenue tax.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Baroness Denton of Wakefield): My Lords, it remains the Government's policy to encourage cost effective and well-directed exploration for oil and gas in the North Sea, with proper regard for safety and the protection of the environment.
Lord Ezra: My Lords, is the noble Baroness aware that the proposed changes to the petroleum revenue tax have caused a great deal of anxiety within the industry? It is felt that they destabilise a tax regime which has been steady for the past 10 years and, in particular, is likely to reduce the impetus towards exploration. Is she aware also that, taking the 131 exploration and appraisal wells drilled last year, it is

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felt that that rate might fall to little more than half next year and that something like 10,000 jobs or more could be at risk? Does not the noble Baroness consider that, in putting forward that proposal, the Treasury is perhaps pursuing a policy of short-term gain at the expense of long-term economic benefit?
Baroness Denton of Wakefield: My Lords, I can answer that in no better way than by quoting what my honourable friend the Financial Secretary to the Treasury said in another place. He said that it is a measure designed to ensure that we recover the maximum economic reserves from the North Sea. Forecasts suggest that production will continue to rise and reach record levels over the next three to four years. The tax changes will not affect that. As regards the number of jobs, the figure of 10,000 is alarmist and we expect to see little overall change in the North Sea.
Lord Gainford: My Lords, in addition to the information that my noble friend the Minister has just given, can she also give the House an assurance that investment will still continue in that area?
Baroness Denton of Wakefield: My Lords, I am pleased to tell my noble friend that we have every expectation that investment will continue. I can also say that the levels of capital investment have now risen to their highest level since the late 1970s. It is a prosperous and successful industry.
Lord Stoddart of Swindon: My Lords, does not the three to four-year term just mentioned by the Minister confirm what the noble Lord, Lord Ezra, said; namely, that this is short termism? Further, can the noble Baroness say whether she has had representations, especially from the smaller oil exploratory companies? If so, can she say what consultation the Government had with them as opposed to the consultations they had with large oil companies before the tax was introduced?
Baroness Denton of Wakefield: My Lords, the noble Lord, Lord Stoward—
Noble Lords: Lord Stoddart!
Baroness Denton of Wakefield: My Lords, I apologise; I mean the noble Lord, Lord Stoddart. As the noble Lord has told me on frequent occasions that he is a reasonable man I hope that he will forgive me.
However, the noble Lord well knows that it is not policy to consult before the Budget. Treasury and DTI Ministers are meeting and listening to all representations from the industry. On the question of small companies, in any substantial change there must be winners and losers; but no single class of company is likely to be more or less favourably treated. Companies that purchase interest in assets to provide shelter and not on the basis of sound commercial decision-making may be worse off. I and my colleagues believe that industry is best based on commercial decisions and not on financial tax decisions.
Lord Peyton of Yeovil: My Lords, can my noble friend suggest with the utmost gentleness to the
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Treasury the possibility that those concerned may have got it wrong, that they would be well advised now to seek the views of the industry, which perhaps understands the problem better than they do, and that they should also consider whether in this case they have resorted to a short-term expedient and caused long-term injury?
Baroness Denton of Wakefield: My Lords, I am sure that the Treasury has noted with interest the remarks of my noble friend Lord Peyton on many occasions and will do so now. However, under the reform, the Treasury has not only enabled companies to keep much more of the rewards of their enterprise but also—and rightly—to carry more of the risks and costs involved and not leave those to be carried by the taxpayer.
Lord Donoughue: My Lords, I think that noble Lords on all sides of the House should be alerted to the fact that the Government may be bringing to the British North Sea exploration industry the same striking qualities of political delicacy and economic subtlety with which they recently blessed the British coal industry. Does the Minister accept that most experts in the industry forecast that that will have a devastating effect with a reduction in drillings of 70 per cent. and an unemployment figure, contrary to the Treasury's forecast, of up to 20,000?
Does the Minister also agree that the main damage will be to the development of smaller fields at the margins of the North Sea which constitute what would be the future development of what is now a mature oil province? I put the question again: is that not one more example of short termism with the Treasury sacrificing employment and future energy supplies for the sake of immediate revenues to pay for the economic failures of the Chancellor of the Exchequer?
Baroness Denton of Wakefield: My Lords, I must disagree with the noble Lord, Lord Donoughue. The old regime of high tax rates discouraged investment to enhance oil recovery from existing fields which is incremental investment and gave little incentive to control costs, because costs could often attract high tax relief. Therefore, companies only carried a small proportion of the costs. We are now looking at a regime which will give a long-term and stable environment for investment planning. I should also point out to the noble Lord that the reform is acknowledged by the United Kingdom Off-shore Operators Association as being positive for incremental investment and the development of new fields already found.
Lord Donoughue: My Lords—
Noble Lords: This side!
Lord Donoughue: My Lords, I do not wish to delay the House. I know that the 1,000 Guineas starts in a few minutes and that we all want to be away.
However, will the Minister agree that almost any company operating in the North Sea will improve its revenues immediately by stopping exploration in the area? Is that what the Government want?
Baroness Denton of Wakefield: My Lords, I continue to disagree with the noble Lord, Lord Donoughue. The North Sea has proved to be a very successful offshore exploration area and we believe utterly that it will continue to do so.
Lord Boardman: My Lords, does my noble friend agree that the petroleum revenue tax was designed—I had some part in designing it —to ensure that development was carried out in the North Sea and to ensure that exploration could continue in a way that might not otherwise have been economic? Can she give us an assurance—I believe she is doing so—that the changes which are being made in that tax will not affect the long-term development of the North Sea and the prosperity which that sector of our economy brings to this country?
Baroness Denton of Wakefield: My Lords, my noble friend Lord Boardman points out that situations change. At the time he referred to it was important to encourage development in the North Sea. We believe the proposed changes will allow us to maximise the opportunities there.
Lord Campbell of Croy: My Lords, while the proposed changes may prolong production of oil from existing fields, is consideration being given to exploration programmes already approved and based on the present tax regime? Will adjustments be made or will companies be released from obligations where the financial conditions are changed unfavourably? I again declare an interest in a major oil company.
Baroness Denton of Wakefield: My Lords, I am pleased to tell my noble friend Lord Campbell of Croy that the indication from the industry is that it wishes to continue with the agreements it has made with us. Final discussions will take place during the Committee stage of the Finance Bill.

Inland Revenue: Responsibilities
3.21 p.m.
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
Whether the Inland Revenue is required to approve schemes whereby the remuneration of employees may be paid to it via specially created companies, as in the recent case concerning the BBC.
The Minister of State, Department of Transport (The Earl of Caithness): No, my Lords.
Lord Jenkins of Putney: My Lords, does the noble Earl accept that such an Answer is quite inadequate to the Question which is put to him? Perhaps he has not read the Question but he is asked whether the Inland Revenue is required to approve schemes. He gave me a negative answer and I accept that that is adequate in itself, but will he not tell us—the House is entitled to know—on what basis it is possible for a person in an earning capacity to turn himself into a company? Does every occasion on which that is done have to
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receive the approval of the Inland Revenue? If I worded the Question wrongly, I must apologise to the noble Earl.
The Earl of Caithness: My Lords, it is up to the noble Lord how he words his Question. I answered the Question on the Order Paper. The Inland Revenue takes steps to assist employers to fulfil their obligations. As a part of its work the Inland Revenue issues written guidance for employers; it advises on the obligations arising in certain situations when asked to do so, and it also visits employers periodically to audit their records. However, it is the obligation of employers to ensure that payments to employees or other workers are treated correctly for income tax and national insurance purposes.
Lord Hailsham of Saint Marylebone: My Lords, am I not right in thinking that the construction of tax statutes is ultimately a question for the courts and not for the taxpayer or the Inland Revenue?
The Earl of Caithness: My Lords, I believe my noble and learned friend is right that ultimately a decision is taken in the courts if there is a dispute. It is the Inland Revenue's duty to look into the facts of each case.
Lord Bruce of Donington: My Lords, is the noble Earl aware, or will he agree, that it would be most undesirable if the Inland Revenue were allowed to interfere at will with the operation of the Companies Acts themselves which grant to individuals, provided they have gone through the necessary formalities, the right to turn themselves and possibly their relatives into a limited company with all the rights of contract as between one corporation and another which are thereby enshrined in the articles and memorandum of association? However, does the Minister agree that the real trouble in this whole matter is the disparity of treatment between individuals employed, and therefore assessible under Schedule E of the income tax Acts, and the expenses that are allowed to independent individuals or to limited companies? What is really required is a revision of the taxing statutes themselves whereby the expenses allowed to employees for tax deduction purposes are brought more into conformity with those that are admitted under Schedule D in the corporation tax provisions.
The Earl of Caithness: My Lords, I agree with the noble Lord's analysis that he gave in the first part of his question. However, the second part of his question goes very much wider than that on the Order Paper.
Lord Stewartby: My Lords, does my noble friend agree that it is perfectly in order for consultancy companies to be set up for legitimate purposes, one of which is pensions, for those who draw their income from many sources or who change their occupations and their revenue sources quite frequently? However, what has caused concern about a recent case, and other comparable cases which may exist, is that a person with such a consultancy company might apparently be able to become not only a full-time employee but actually an executive of another

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company and still have expenses deducted from the consultancy company. That is the cause of the concern which many of us feel.
The Earl of Caithness: My Lords, my noble friend will appreciate and fully understand that I do not wish to comment on any particular case. However, he was right to point out some of the potential advantages of using a service company for those people who have certain occupations; for example, computer consultants, TV and film workers, entertainers and those in professions such as design and architecture.
Lord Bonham-Carter: My Lords, will the noble Earl be so good as to tell your Lordships' House whether Mr. Birt—that is the case which gives rise to this Question—has yet signed a contract with the BBC as a normal member of the staff?
The Earl of Caithness: My Lords, I wonder whether the noble Lord heard my reply to my noble friend? I said that I would not discuss any particular case.
Lord Molloy: My Lords, is not the quintessential feature of this matter the fact that all these cunning and clever schemes are really designed to reduce the amount of income tax the individuals involved will have to pay? That provision does not apply to other skilled workers such as coal miners and steelworkers. Is it not therefore about time that the Government defended the mass of ordinary hard working people who cannot become involved in such cunning schemes but who pay their income tax in an honest and straightforward manner?
The Earl of Caithness: My Lords, these service company schemes are perfectly legal provided the Companies Act is followed. I would say to the noble Lord that there is also the matter of VAT, corporation tax and many other taxes which come into play when one is dealing with companies rather than individuals.
Lord Cledwyn of Penrhos: My Lords, is the noble Earl aware that the supplementary question asked by my noble friend Lord Bruce was well within the scope of the Question and is an important matter related to the complex subject we are discussing? Will he be good enough to reply to my noble friend?
The Earl of Caithness: My Lords, I listened with care to the question posed by the noble Lord, Lord Bruce of Donington. My understanding was that it concerned a revision of the whole of the tax structure and the payment of tax. That is very different to the Question on the Order Paper.
Lord Mackie of Benshie: My Lords, is not the Minister being somewhat unreasonable in refusing to answer my noble friend Lord Bonham-Carter? This is a case of immense public interest and it has been mentioned in every newspaper. The matter is very relevant to the Question on the Order Paper.
The Earl of Caithness: My Lords, I do not believe I was at all unreasonable in my answer to the noble Lord, Lord Bonham-Carter. It would be quite wrong for me to discuss individual cases.
Lord Monkswell: My Lords, in his first supplementary answer the Minister said, as I understood it, that the responsibility for the payment of income tax rested on the employer. Is the Minister satisfied, in connection with the remuneration of Mr. Birt as an employee of the BBC, that the BBC has ensured that the correct income tax has been paid?
The Earl of Caithness: My Lords, I repeat for the third time that I am not prepared to discuss any individual case.
Lord Richard: My Lords, it is all very well for the Minister to stand there saying he is not prepared to discuss that case but the Question on the Order Paper specifically deals with it. I cannot therefore for the life of me understand why he cannot discuss the matter. Is it a fact now that Mr. Birt has a contract with the BBC and is paying tax under the PAYE scheme? Why on earth cannot the Minister answer that question? I would say with respect that it is in the Question.
The Earl of Caithness: My Lords, it might be in the Question but it is not a matter for the Government.
Lord Jenkins of Putney: My Lords, is the noble Earl aware that the importance of the BBC example is precisely that a person receiving a full-time salary simultaneously set himself up as a company and obtained reliefs which, strictly speaking, were applicable only to a company or to a person not engaged by a single employer? That is an example of a general case. The noble Earl is entitled to tell us whether that practice is common. If it is common ought it not to be stopped?
The Earl of Caithness: My Lords, I certainly do not know whether the circumstances alleged by the noble Lord are common practice. That is a question for the Inland Revenue, which will look at every individual case. I shall not comment on the case.

Housing Benefit Scheme
3.30 p.m.
Lord Stallard Lord Stallard asked Her Majesty's Government:
Whether they are satisfied with the working of the housing benefit scheme in the light of the recent report by Shelter.
The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley): My Lords, we are still studying the report and its recommendations. Local authorities are responsible for the day-to-day operation of the housing benefit scheme and for the quality of service they provide to their customers. We do, however, note the considerable public expenditure consequences of the recommendations in a scheme which is expected to spend £8 billion in 1993–94.
Lord Stallard: My Lords, I thank the Minister for that reply and I am glad that he is studying the report. Has he noticed that one of the major problems which affects housing benefit claimants is the delay in processing their claims? Is the Minister aware that the requirement for councils to process the claims is 14

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days but many of them take much longer? The time taken ranges from 112 days to 27 days. That means that tenants rapidly fall into arrears with the huge rents they have to pay. Landlords cannot wait for the money and as a result we are creating homelessness through a measure which was designed to assist the homeless. Is that not a matter which we ought to consider urgently? Should councils not be informed that the 14-day limit is a requirement and not just a luxury? If they cannot meet the 14-day requirement should they not meet the interim payment requirement, which many of them do not meet either?
Lord Henley: My Lords, I do not accept the noble Lord's second point that housing benefit itself is causing homelessness. I simply cannot accept that a mechanism that is designed to help people out of homelessness is actually causing it.
In respect of the noble Lord's first specific question I would accept that there are occasions when the local authorities are probably not meeting their targets. However, as far as we are aware 75 per cent. of all claims are processed within 14 days of the local authorities having the necessary information. That is important. That is the statutory requirement.
As the noble Lord correctly said, local authorities must make interim payments where there is a delay. Further, under the Citizen's Charter local authorities are now collecting data for performance indicators on housing benefit. That information will be published next year. We hope as a result to be able to improve their service.
Baroness Hollis of Heigham: My Lords, I should like to link the report with the Government's own return to work initiative which was published yesterday and which we welcome. Is the Minister aware that a family which doubled its earnings from £60 a week to £120 a week is only £5 a week better off because benefits, and especially housing benefit as the report shows, are withdrawn too sharply? Is that not perverse?
Lord Henley: My Lords, I am aware of the concerns of the noble Baroness about the level of the taper in housing benefit and the other income-related benefits. I have to tell the noble Baroness that we have to allocate resources as best we can. Any reduction in the taper, particularly if one, say, reduced the housing benefit taper from 65 per cent. to 50 per cent., would be extraordinarily expensive. In that particular case it would cost something of the order of £340 million a year.
Earl Russell: My Lords, my noble kinsman said that he could not understand how housing benefit might lead to homelessness. Will he consider two ways in which that could happen? The first is where housing benefit falls far short of the rent and the tenant cannot meet the difference, and the second is when housing benefit is not paid for many months after it is due. Are those possible?
Lord Henley: My Lords, I have already dealt with delays and stated that local authorities have a duty to make interim payments where there are delays. I also
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would like to say that it is necessary that there should be, in a benefit which deals with public money, rent restrictions where landlords seek to charge rents above market levels at the expense of the taxpayer. However, I should stress that vulnerable groups are protected from housing benefit reductions unless they can be expected to move to cheaper accommodation that is available.
Lord Addington: My Lords, will the Minister take on board the fact, which was pointed out in the report, that under the current system students' income is more than £450 below the income they would expect to gain from social security benefits alone for the 18 to 25 age group? Would it not make sense to restore students' right to claim housing benefit or, failing that, to bring in a new system of student financing?
Lord Henley: My Lords, as the noble Lord will know, in the main full-time students are outside the benefit system. We believe that they should be, quite correctly, the responsibility of the education system. I see no case whatsoever for returning to the days when large numbers of students were claiming housing benefit and, for that matter, other income-related benefits.
Lord Stallard: My Lords, in his original reply the Minister mentioned the rising costs of housing benefit. Could that not be because there are now more people unemployed than ever and there are therefore more housing benefit claimants? In his reply to the noble Earl, Lord Russell, the Minister failed to recognise that rents can rise twice a year but housing benefit rises only once a year, so that the number of people falling into arrears increases rapidly accordingly. The CAB regularly reports cases of people falling into arrears and being threatened with eviction because of these anomalies. Is it not time that we debated the whole matter in detail in this Chamber?
Lord Henley: My Lords, I am sure that my noble friend the Chief Whip will have heard the noble Lord's last remark. I quite accept the point that obviously income-related benefits are affected by the state of the economy. As regards the question of rent increases, as I explained, we have to have restrictions to ensure that the system does not become a vehicle whereby landlords can take ever-increasing sums of money from the taxpayer.

Business
3.35 p.m.
Lord Hesketh: My Lords, it may be for the convenience of the House to know that the Committee stage of the Education Bill will be adjourned at about 7 p.m. for about one hour and that during that adjournment the Treaty on Open Skies (Privileges and Immunities) Order 1993 will be taken.

New Towns (Amendment) Bill [H.L.]
Lord Finsberg: My Lords, I beg to introduce a Bill to amend Schedule 9 to the New Towns Act 1981. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Lord Finsberg.)
On Question, Bill read a first time, and to be printed.

Deputy Chairmen of Committees
The Chairman of Committees (Lord Ampthill): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the Lord Brougham and Vaux and the Lord Lyell be added to the panel of Lords appointed to act as Deputy Chairmen of Committees for this Session.—(The Chairman of Committees.)
On Question, Motion agreed to.

Carrying of Knives etc. (Scotland) Bill
Lord Lyell: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, that the order of commitment be discharged.—(Lord Lyell.)
On Question, Motion agreed to.

Education Bill
3.37 p.m.
The Minister of State, Department for Education (Baroness Blatch): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself in Committee.—(Baroness Blatch.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 148 [Meaning of "special educational needs" and "special educational provision" etc.]:
Baroness Blatch Baroness Blatch moved Amendment No. 192B:
Page 90, line 32, after ("authority") insert ("(other than special schools)").
The noble Baroness said: Amendment No. 192B in my name is part of a group of amendments including Amendments Nos. 193, 218B, 220BA, 220BB and 220C which will be spoken to by other Members of the Committee.
Amendment No. 192B makes clear the distinction between special educational provision and that which is made generally for children who do not have special educational needs. I therefore ask the Committee to accept this technical amendment which will in every
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case specifically exclude provision made in local authority maintained special schools from the definition of special educational provision.
I know that the noble Lord, Lord Ponsonby, has tabled an amendment to that very effect and I hope that when we come to it he will feel able not to move it. I shall, of course, respond to all the other amendments in the group after they have been spoken to by the respective Members of the Committee. I beg to move.
Lord Judd: Before addressing the amendment, perhaps I may say this. As noble Lords will be aware, there has been a certain amount of feeling on this side of the Chamber about the time available for the Bill, in particular in the light of the guillotine in another place and the short time for public consultation on the White Paper. It would be churlish therefore not to say that we appreciate that in answer to our representations the Government have made one further day available for the Committee stage. We should like to put our appreciation on record. We believe that that is a move in the right direction in the spirit of open discussion and democracy. We should like that recorded.
I raise one small point on the amendment on which the Minister may help us. It has been argued by some that there is a possible ambiguity that educational provision made at any grant-maintained special school is not similarly excluded from the definition. Will the Minister clarify that point?
Baroness Blatch: I have explained that the amendment specifically excludes provision made in LEA-maintained special schools from the definition of special educational provision. Such schools would otherwise fall within the category "schools maintained by the local education authority". Clause 172 defines special schools, including LEA-maintained special schools as being,
"specially organised to make special educational provision".
In short, special education should not be defined as provision additional to that made in special schools.
Lord Elton: I have put down the second amendment in the group, Amendment No. 193. It adds to line 34 on page 90 the words,
"and includes the provision of speech and language therapy".
I tabled the amendment simply for this reason. It has come to my notice that there is considerable difficulty in the field because while agreeing on the desirability of providing for special educational needs in speech and language therapy, district health authorities and local education authorities cannot between them decide whose responsibility it is to pay for such provision. I simply ask my noble friend to make a decision in one direction or the other and relieve us of the difficulty.
Lord Renton: I rather wish that I had had a word with my noble friend Lord Elton about the amendment, but the point has only just occurred to me. The word "language" is being used in two somewhat different contexts within the same clause.
Lord Elton: Perhaps I may spare my noble friend any difficulty. I believe that the difficulty I have

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addressed is understood. I would not sully the face of the statute with my inadequate language. So long as it suffices to convey the difficulty to my noble friend and for her to answer it, I shall take the amendment away and it will vanish as the mist in the morning.
Lord Renton: I am relieved to hear that. I need not add more.
Lord Addington: I support my noble friend Lord Elton on the amendment to which I have put my name. The provision covers an important area and clarification is needed. Giving responsibility and authority to one area is important. I thank the noble Baroness for the constructive provision moved at the beginning of the group of amendments.
3.45 p.m.
Lord Peston: Perhaps I may say a personal word in support of the amendment. I declare an interest. My wife was trained as a speech therapist. Therefore anything in that field attracts me.
I, too, am a little worried about the point made by the noble Lord, Lord Elton: that a provision that we all believe desirable might not be made because of a technical problem about who is responsible for such provision. I hope that the noble Baroness will be able to explain that there is no problem or, if there is, that she will put it right.
On the intervention by the noble Lord, Lord Renton, I did not believe that there was a difficulty with regard to "language" in the two separate clauses. I understand what "language" meant in subsection (3), and its meaning in the amendment in the name of the noble Lord, Lord Elton. I, at least, was not confused by the difference but perhaps for once I understand something that others do not.
On Question, amendment agreed to.
The Chairman of Committees: I call Amendment No. 192C which stands in the name of the noble Lord, Lord Ponsonby of Shulbrede.
Lord Peston: I am lost.
Baroness Blatch: The first is a complicated group which I said included Amendments Nos. 193, 218B, 220BA, 220BB and 220C. If the noble Lord, Lord Howell, is in the Chamber a number of the amendments in his name are in that group.
The Chairman of Committees: Nevertheless, the noble Baroness did not speak to Amendment No. 192C. I believe that the noble Lord, Lord Ponsonby of Shulbrede, would like to speak to his amendment.
Lord Elton: I believe that we are in a difficulty. We have agreed to the first amendment in the group and have ignored the remainder. It would be for the convenience of the Committee if we now dealt with the second amendment and the second group. I am sure that we can all retain my noble friend's opening remarks with regard to Amendment No. 193 and discuss the remainder of the group when we reach that amendment.
The Chairman of Committees: I entirely agree with the noble Lord. That is what I sought to indicate. Amendment No. 192B has now been agreed. I am therefore calling Amendment No. 192C.
Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede moved Amendment No. 192C:
Page 90, line 32, after ("area") insert ("(none of which shall be a special school)").
The noble Lord said: The purpose of the amendment and the group of amendments is to prevent the establishment of grant-maintained special schools and to prevent the maintained special schools becoming grant-maintained.
Special schools are an important element in the LEAs' provision to meet the range, degree and quantity of special educational needs among children for whom they are responsible. Special schools, together with units, support services and mainstream schools, are intended to dovetail with each other to form a coherent range of services to meet children's needs. Giving grant-maintained status to special schools would remove from them the control and co-ordination of LEAs in important ways.
An LEA would no longer be under a duty to review provision made at the school; nor indeed would it be able to do so. It would become impossible for that school to be part of the planned response by the LEA to the special educational needs of children in the area since the LEA would no longer have a means of involving itself in such a plan.
The amendment goes to the heart of the worries expressed by numerous interest groups about the planning and lines of responsibility for special educational needs provision. In concluding my arguments, I can do no better than quote from Hansard of 23rd June 1988. In response to an amendment by the noble Baroness, Lady Cox, the then Minister, Lord Trefgarne, responded:
"Special schools are … in a different position from ordinary schools. They often serve a much wider area, so that there is no discernible community with which they could establish close links. That is not to say, of course, that they do not encourage close parental involvement: many do, to mutual benefit. But they could not look to their locality for the sort of support that grant-maintained schools will need. And as far as parental choice is concerned, it is inevitable, because special schools by definition cater for special needs, that the scope for offering choice is going to be limited. Very often there is only one school of the appropriate type and in the right place for a pupil with special needs. Whether that school is grant-maintained, LEA-maintained or non-maintained will not be relevant. To admit special schools to grant-maintained status would not therefore increase choice in any way.
"Special schools rely to a large extent on specialist services which the local education authority provides. Under the 1981 Act LEAs, for their part, are charged with the responsibilities for making statements of special educational needs and for determining the school which a statemented child should attend. It would not be compatible with those responsibilities if the special school for the area in which the child lived was not under the control of the local education authority. In such circumstances the local education authority might even have difficulty in placing a child in a suitable school".
The Minister further stated:
"In conclusion … we do not believe that making such schools eligible for grant-maintained status would be in the interests of those whom they serve. Nor do we think it would be practicable".—[Official Report, 23/6/88; cols. 1027–1028.]
I cannot put the argument any more succinctly or better than the former Government Minister in 1988. I beg to move.
Baroness Perry of Southwark: I find the remarks of the noble Lord opposite quite extraordinary. I can think of no group of parents who would have a stronger wish and a greater need to be concerned very directly in the governance of the school which their children attend than the parents of children with special educational needs. His view that it would not in any sense increase choice to have a grant-maintained school as well as a local authority school in an area is also very hard to understand. Given the enormous involvement and concern of parents in the grant-maintained school, I would have thought that most parents would wish strongly to have an alternative rather than simply one choice—namely, what the local authority provides, which will be very similar in all its schools and in all its special schools—and that they would prefer to have the choice of a special school in which they could have direct involvement and which might be extremely well provided for and resourced by the local authority. That would offer a parent a very clear choice and I hope we would support it.
Baroness Warnock: There is an extraordinary degree of confusion about planning and provision for children with special educational needs. We have been repeatedly assured by the Government, from the 1988 Act and through the White Paper, and I have been personally assured, that the local education authorities will retain responsibility for children with special educational needs. I do not see how the local education authority can retain that responsibility or carry it out if there are to be grant-maintained schools which are special schools and into which, presumably, the local authority will have no authority to go to review or monitor the provision. I shall say more on this matter in regard to later amendments. It seems to me that that runs completely counter to everything that we have been promised about local education authorities and their responsibility for special needs if there should be grant-maintained schools that are special schools.
Lord Renton: At various earlier stages of the Bill we heard the word "flexibility" used in order to cover the wide variety of circumstances that prevail unavoidably in our society. I would have thought that in order to achieve flexibility in the circumstances of special educational needs, there is a good deal to be said for allowing the special schools to become grant maintained. I am thinking in particular of those special schools that are outside the state system at the moment although recognised by it—schools run, like some of the Rudolph Steiner Schools, by charities and by voluntary societies.
If by mischance one or other of those schools was to find itself in financial difficulties, as many charities—some of us know this from sad experience—have found themselves in the past year or two, I do not see why they should not try to opt into the state system.
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In doing so, the trustees and governors of the charity may very well feel that they would rather have their school become grant maintained than become a local education school or a voluntary school under the local education authority. Therefore I believe that in order to achieve flexibility we should not rule out the possibility of special schools becoming grant maintained.
I could give examples of what are in effect special schools which are at present outside the system altogether. I remember one remarkable example. Some 20 years ago, when I served in another place, I was asked to show the boys of a special school round the Houses of Parliament. To my astonishment all the boys—about 20 of them turned up—were albino. All were short-sighted and wearing glasses. It was a remarkable thing that a school had been started for those boys. If that school ran into difficulty, I do not see why those responsible for it should not have freedom of choice.
Using the word "choice" in a rather different sense, the noble Lord, Lord Ponsonby, said that under the Bill as it stands, if his amendment were not accepted, choice would be precluded. I do not see why it should be. We should aim at freedom of choice, and if further amendment of the Bill is needed—I do not know that it is—to achieve that, it should be done. I do not know whether the views I have expressed coincide with those of my noble friend Baroness Blatch.
Lord Northbourne: Perhaps I may intervene briefly to oppose the amendment and to ask the noble Baroness why the Government do not go further. Surely, the procurement of special educational provision from independent schools ought to be included in this step.
Baroness Seear: Can the noble Baroness clarify one point? I expect that I should know the answer, but I do not. Supposing one takes the view, as I do personally, that so far as special needs are concerned, we do not want schools under the local authority to go grant maintained. The noble Lord, Lord Renton, made the point about a voluntary organisation which has an established special school but, for a variety of reasons, as I can well see, may run out of money and would like to contract into the grant-maintained system. Or perhaps a school of a special religion, which could not be looked after by the local authority, would like the advantages of grant-maintained status. Is that permitted under the legislation? If it is not, should it be?
Baroness Fisher of Rednal: There is a certain concern that in grant-maintained schools special school pupils might in some circumstances bring down the level of attainment in the testing procedure. It may mean—perhaps the noble Baroness will explain this to the Committee—that if grant-maintained schools accept special school children, those children will be looked after in a different way when examination processes go through on attainment. There is a feeling that the grant-maintained schools will not be at all helpful to the special school pupils, and therefore that local authority schools will take the bulk of special

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needs children and will be low down in the attainment leagues following the examination results. It would be helpful to the Committee if the Minister could indicate the lead to be given to grant-maintained schools to ensure that they have a representative group of special needs pupils.
Baroness Blatch: To deal first with the point made by the noble Baroness, Lady Fisher, the amendments deal with special schools being allowed and being eligible for grant-maintained status. So the particular point made by the noble Baroness is not applicable. I can say to her that the record so far shows that grant-maintained schools that are up and established are doing very well by their children with special needs, particularly those children who are part of the 18 per cent. as well as those who are part of the 2 per cent. of what we have all come to know affectionately as the Warnock children. So the particular fear expressed by the noble Baroness is not founded. We shall have further opportunity to talk about the needs of children who are not statemented and other special needs children in mainstream schools.
The noble Baroness, Lady Warnock, was concerned about the role of the local authority and, I believe, tried to suggest that giving self-governing status to special schools would remove them from the control and co-ordination of the local authority thus making it impossible for such a school to be part of a planned response by the authority to the special educational needs of children in its area. There is little argument here. It is an exaggerated concern. Sensible authorities will recognise that they have little to fear when one of their own special schools becomes self governing —for that is all it is—adding to local parental choice.
Local authorities have the most important co-ordinating role of all which is placement of children with special needs. The argument seems to ignore the fact that authorities must in future respond far more flexibly to parental choice. A parent will be able to choose an appropriate special school in another authority or a mainstream self-governing school. We have not heard arguments that that will disrupt central planning. Why cannot parents choose a self-governing special school?
Independent schools cannot become grant-maintained schools. We shall be discussing that point later today. Perhaps I can address the point about schools which are not in the LEA-maintained system at the moment and which wish to become grant-maintained schools. It will be possible for the funding authority to establish a new grant-maintained school from an existing school out of the sector against proven criteria about the assessment of need and so forth. So there is a way in for schools in that sense. We shall be discussing planning in great detail when we come to discuss Amendment No. 197A.
I have to say that these amendments are wrecking amendments. The Government believe and indeed have proposed that local authority special schools, which subsume local authority established hospital schools, shall be eligible to seek grant-maintained status subject to all the procedures laid down in Clauses 173, 174 and 176 and in Schedule 10.
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The noble Lord, Lord Ponsonby, intends to remove those clauses from the Bill and so deny to the parents of children with special needs the democratic right of freedom of choice under the law. This is a wrecking amendment. I ask the Committee to reject it.
4 p.m.
Lord Monkswell: Before the noble Baroness sits down, I should like to ask her to consider how society at large and the local community are going to adapt to changing circumstances, particularly with regard to children with special needs. If a special school opts out of the local education authority administration and becomes grant maintained, it has a vested interest in continuing its existence and recruiting children to make up the numbers and to maintain its financial viability. It will harp on the concept of parental choice.
As regards special needs children, one has to balance the concept of parental choice with professional advice. That can lead to a dilemma. Perhaps I may explain what I mean to the Minister by way of illustration. I shall mention our experience of education services for children with hearing and visual impairments. Over the past 10 years the system in Manchester has changed from being a system of special schools for visually and hearing impaired children to a support service whereby visually and hearing impaired children are educated in Mainstream schools with support from a support service.
Manchester is currently undertaking a review of its special needs provision and is effectively reducing the number of what are classified as moderate learning difficulty schools. It is changing the support services and hoping to provide a support service for mainstream schools to enable children with moderate learning difficulties to be educated in mainstream schools. There is a fear that if the provisions in the Bill are enacted as the Government seem to wish, those special schools, whether they are for children with visual impairment, hearing impairment, moderate learning difficulties or a range of other special educational needs, will be frozen in time. Governing bodies and staff will have a vested interest in maintaining the number of children attending those schools. Parents will be persuaded that it is the right course for their children.
The change which has been taking place over the past 10 years and which will continue probably for the next 10 years whereby children with special educational needs are brought into mainstream schools with appropriate support services will be stopped. We shall lose the opportunity of adapting and accommodating the change in education philosophy, technology and knowledge to enable children with special educational needs to be educated in mainstream schools. That effort will be frustrated. The benefits for children with special educational needs in the future will be lost. That is a desperate fear.
I am not sure how the Government will address that anxiety. Can the Minister give any assurances to allay the fears that we have about losing the real advances made in providing for children with special educational needs?
Baroness Blatch: The noble Lord addresses two issues. I have no doubt that we shall discuss one of them in some detail later today; namely, the policy of integration. Whether or not the noble Lord opposes a vigorous policy of integration, there are Members of the Committee who take a different view, as we shall hear later.
The Government take the view that provision for the child and the needs of the child are supreme throughout the system and that the provision should be appropriate. "Appropriate" means that the provision may be better in a special school for special children or in a mainstream school. We are speaking at this time about special schools and we know that most of the children in special schools have statements. If the local authority believes that a child is more appropriately educated in a mainstream school, there is nothing wrong with the authority stating that and naming the school on the statement. We say that it is absolutely essential that the parents' preference should at least be taken into account when the LEA arrives at its decision. There is a tribunal system set up for the parents, if they wish, to challenge that view. If so, an independent judgment will be made about whether the appropriateness of the provision made by the local authority is right or wrong. There has to be a presumption in favour of the parents' choice where at all possible, subject to three tests: whether the decision is consistent with the statement and the accurate information in the statement; the impact on the other children in the school (in other words, whether one particular school is unbalanced by the number of children with particular needs being sent to it); and, thirdly, the efficient use of resources.
Unless the noble Lord is a total integrationist, his fears are, I believe, totally unfounded. Today we are talking about existing special schools and their right to seek grant-maintained school status. Thereafter they are subject to all the procedures laid down in the clauses which the noble Lord, Lord Ponsonby, seeks to remove from the Bill.
I believe that this is a wrecking amendment. I hope that the Committee will reject it.
Baroness Warnock: I do not think that it is a wrecking amendment. It is largely a matter of trying to clarify what the responsibility of the local authority for all children with special needs is supposed to be. There is an enormous desire for clarity among local authorities and parents. Certainly I do not feel that it is a wrecking amendment. I hope that the Minister will be able to tell the Committee what has happened since 1988 to make the Government so totally change their mind about the appropriateness of special schools for grant-maintained status.
Lord Glenamara: With regard to what the Minister said, why do the Government in this Bill (in Clause 152) give parents an absolute right to send their children to special schools but no corresponding right to send them to mainstream schools? I shall raise the matter under Clause 152 in due course. But since the noble Baroness mentioned it, I shall ask her now why there is such a difference? Parents have the absolute right to send their children to a special school but no
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absolute right to send them to a mainstream school. Modern thinking is that the children should go to a mainstream school.
Baroness Blatch: I am not sure what the noble Lord is saying. If a special school is full there is no such thing as an absolute right. If a parent wishes a child to have a place at a special school and the school is able to provide for the specific needs of that child, it will take the child. If the school is full there is no way that the parent can exercise an absolute right.
With regard to mainstream schools, other than a selected school for specific reasons—a special school is selected for special educational reasons—all parents have a right to send their children to school up to the standard number. If there is room in that school, then any mainstream school must accept the child.
Lord Glenamara: If the noble Baroness reads Clause 152, she will see that it gives an absolute right to parents to send their children to a special school.
Baroness Blatch: As I said, there is nothing different from the right of parents to send their child to a mainstream school. If a parent has a child with specific needs that are so special that he or she belongs in a special school, I am making the assumption that they are very special. If that is true, there is nothing to stop that parent from going along to a mainstream school and saying, "I would like my child educated in this school". But if it is the case that the school does not have the expertise to meet the needs of that particular child, it becomes the responsibility of the local authority to determine what is appropriate for the school. It does not deny the right of the parent to ask for a place in a mainstream school.
Earl Baldwin of Bewdley: Will the noble Baroness answer the question asked a little earlier by my noble friend Lady Warnock as to why the Government have changed their mind over the past five years?
Baroness Blatch: When the Act was debated in your Lordships' Chamber the Government used the same grounds for denying special schools the opportunity to become grant-maintained. Indeed, at the time they also said the same about the small rural primary schools.
Time has moved on; the policy is proving successful; self-government is something of which schools are capable. We know that many special schools, at the time of that policy in 1988, made a good case for wanting to be considered for self-governing status. We listened to all the arguments and believe that it should be an enabling power for any school that wishes to seek it. After all, it is a voluntary process; if they want to seek grant-maintained status we are making it possible for them to do so.
Therefore no viewpoint is encased for all time. But it was the view at the time that it was a new policy and there were complicated issues in regard to the funding of special schools and in regard to the degree to which a special school could stand alone but within the bosom of state school provision. We are more than convinced that that is a possibility as long as the

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school goes through the process of having its entire case considered and the Secretary of State at the end of the day makes the determination.
4.15 p.m.
Lord Jenkin of Roding: Perhaps I may return to the main thrust of the amendment and follow up what I thought was an interesting point made by my noble friend Lord Renton. It seems to me that the case for enabling special schools to be grant-maintained is the same as that for allowing ordinary schools to be grant maintained.
The noble Lord, Lord Ponsonby, shakes his head. Perhaps he and I must agree to differ on the matter. When the old grant-maintained schools were abolished—I had more than one distinguished school in my constituency—many chose to go independent. What the then Labour Government were doing was to establish a form of educational apartheid. They created a complete gulf between the sector which was the responsibility of government and local authorities and the sector which was not. To my mind that was a tremendously retrograde step. It produced enormous hurdles for children from disadvantaged backgrounds trying to obtain the best education possible. I shall not develop that argument now.
What the Government have done in recent years and what the Bill is doing now is to begin once again to build bridges between the two sectors so that the divide is not as stark and so that there is a graduated form of provision which allows parents to make a choice of what most suitably fits their children.
I had a marvellous special school for the deaf in my constituency. It was a charity, an independent school. On later amendments tabled in the name of my noble friends Lady Young and Lady Faithfull I hope to be able to enlarge the argument. Why should there not be the same spectrum of choice in the field of special schools as we have now introduced and which the Committee is accepting for ordinary schools? After all, with this group of amendments we are taking Clauses 173, 174 and 176 and Schedule 10, which the amendment of the noble Lord, Lord Ponsonby, seeks wholly to strike out. There would be no possibility of establishing grant-maintained schools in the special sector and no opportunity for an independent school to decide to become grant-maintained.
It seems to me that in the field of special schools the noble Lord is trying to establish that dreadful apartheid which operated for so many years under the policy of successive Labour Ministers. I wholly support what the Government are doing and totally oppose what the amendment suggests. I shall later have something to say in regard to schools for the blind and handicapped as well as for the deaf. But there is enormous advantage in being able increasingly to blur the administrative distinctions and offer a greater choice of provision. The proposals in the Bill are absolutely right and should be warmly supported by the Committee.
Lord Merlyn-Rees: The question raised by the noble Lord, Lord Jenkin, in regard to the position of direct grant schools in general is one that has only ever
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exercised my mind in theory. As I come from South Wales, the grant-maintained system does not seem to matter much. We have managed very well, thank you very much, out of the state system. I believe that that is true also in Scotland. It is an English phenomenon far more than a Welsh or Scottish phenomenon.
People are entitled to send their children to whatever school they wish. That argument, therefore, is not one with which I am concerned. Recently for the first time in practice rather than in theory I had to consider the question of a child and special education. It opened my eyes.
I have no doubt that many special schools in the private sector are first class. I wish that that were the case in the public sector. I wish it were as easy to obtain entry to them and that money did not arise as a factor in the situation. The question I want to ask does not relate to my personal concerns. In a northern city that I know special schools have been shut down; they have been closed because of the new philosophy that children should go into integrated schools. In that local authority area therefore there are fewer special schools for children to attend.
There is a special school that I know well, where the parents are extremely supportive and where the staff work extremely hard and deserve extra payment, which under our system is given far more to teachers who work with the highly academic pupils. Suppose the school opts to be grant-maintained. There are already far fewer special schools than there used to be. What will the parents in a poor section of town do? Will they be able to insist that their child attends that special school if they think it is necessary? What will the new system be in the grant-maintained schools?
Perhaps I may put a second question. What will happen the other way round? I know that some parents are extremely worried when their child who is not severely disabled—many are severely disabled and will not go back into the integrated system—is considered by the local authority to be eligible to attend an integrated school. The parents may want the child to stay in the special school, which is now grant-maintained. Who will decide whether that happens? Will the head teacher who now runs his own ship—it seems to me that they run their own ships anyway, but that is another matter—have control of the intake? And what input will the local authority have?
Baroness Blatch: I believe that part of the question asked by the noble Lord, Lord Merlyn-Rees, was answered earlier in relation to the point about LEAs closing down special schools as part of an integration policy. The noble Lord, Lord Merlyn-Rees, said later—as I think is right—that there had to be a balance because there would always be some children who required special school provision as opposed to special provision in mainstream schools. But the rights of parents under either system remain the same. If they are not statemented children they can go to any school door and ask to be accepted. If the special school thinks it is appropriate and there is room it can take those children. If the mainstream school has room and it believes it can meet the needs of those children it must take them up to its capacity.

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This Bill will not affect children who are already placed in schools, so it will not do anything retrospectively. However, other children who come along will be able to state a preference—we will have a detailed debate about this later on—for an LEA-maintained school or a grant-maintained school. That preference has to be presumed in favour of and judged against three tests: compatibility with the statement; a judgment about the impact on other children in the school; and the efficient use of resources within the authority.
I know that Clause 152 troubles the noble Lord, Lord Glenamara. That clause does not give parents a veto over the placement of their child in a mainstream school. Clause 152 places local authorities under a duty to integrate children, subject to certain conditions, provided integration is compatible with the wishes of the parents. If it is not compatible with the wishes of the parents the local authority has no duty to integrate. There is no question of compulsory integration because the effect of Clause 152 falls away.
Lord Glenamara: I was referring to Clause 152(1), which uses the words,
"the child is educated in a school which is not a special school unless that is incompatible with the wishes of his parent".
If that does not give parents an absolute right I do not know what does.
Baroness Blatch: Perhaps the noble Lord will listen to what I say. If he goes on to read Clause 152(2) he will see it provides that if integration is not compatible with the wishes of the parent the local authority has no duty to integrate and Clause 152 falls away altogether.
Baroness Seear: In the midst of all this discussion I may have missed the point, but has the Minister answered the point raised by the noble Lord, Lord Renton, that I picked up? Can a voluntary organisation—a Rudolf Steiner school—opt in to the grant-maintained system? This is a terribly important point to many of us.
Baroness Blatch: It is a terribly important point and also a hugely expensive one. We will discuss this in great detail later. Outside the maintained sector there are schools full of children simply asking that the costs be met by the Exchequer rather than by whatever means they are met now. That will be one of the inhibiting factors when we discuss that. What I said was that the entré into grant-maintained status would be by way of two avenues: through schools that are already LEA-maintained schools, and where the funding agency determines that there is a need and establishes a special school from scratch. It is unlikely to take a full special school from outside the sector and bring it in because it will not be satisfying the need that has been determined by the funding agency. The funding agency will be charged and given the power to establish a school, just as the LEA has, if there is such a need in the area.
Lord Renton: I am glad that the Minister said what she said. Although she said that we would come to it later, that later discussion would be frustrated if the amendment were to be carried.
Baroness Blatch: My noble friend is right. I appeal to the Committee. This is an enabling measure that offers one more opportunity to a group of parents. If they were not allowed these clauses in the Bill we would create and reinforce a system of apartheid, as my noble friend said. It is important to open up another avenue if we are widening choice but securing the quality of that provision for parents. This is a wrecking amendment. The definition of a wrecking amendment in this place is where the Government wish to do something and make provision for it in a Bill and the Opposition wish to take the provision out of the Bill. That is a very clear-cut definition of a wrecking amendment, and I hope that the Committee will reject it.
Lord Peston: I do not want a debate on the philosophy of what is and what is not a wrecking amendment. The noble Baroness's interventions on these matters seem to me to be tremendously important, so I believe we ought to get them straight. It was the noble Lord, Lord Renton, who started this off and the noble Baroness, Lady Seear, also intervened. Let us leave money on one side. Is the Minister saying that, at least theoretically, a school not in the maintained system —it may be a special needs school or any school—can opt into grant-maintained status? If so it is an amazingly interesting aspect of the Bill. I have to confess that I had no idea that it was in the Bill. We will discuss the matter later, but at this stage I am intrigued to know the answer to that question.
Baroness Blatch: The answer is that the Bill is at this moment couched in such a way that there are only two avenues to grant-maintained status: one is through an existing maintained special school, and the second is a school started from scratch by the funding authority.
Lord Archer of Weston-super-Mare: Will my noble friend make sure that she does not leave money on one side but treats it very seriously indeed?
Lord Peston: If I may say so, that is a silly remark from the noble Lord. I am trying to understand what the Bill says. How we should spend our money is a quite separate question. The noble Baroness said that a school can opt in if the funding authority feels that it is desirable. A new school can start and become grant-maintained. I thought she said that the funding authority could start a new school and bring it in.
Baroness Blatch: I said that the funding authority could start a new school from scratch. I made the point to the noble Baroness, Lady Seear, that if there is a school full of special needs children outside the LEA-maintained sector it would not identify a need that had been identified by the funding agency. I simply said that there were only two avenues for entry. But we have amendments down today, which we will discuss later, to allow for what the noble Lord is asking me to agree to at this moment.
Lord Monkswell: I wonder whether the Government can clarify the situation of children whom I would describe as falling in the grey area. The vast majority of our children are educated in

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mainstream schools and have no special educational needs. There is also a proportion of children who can never attend mainstream schools and who have to be educated in special schools. There is a group of children who can get their education partly in special schools and partly in mainstream schools. There is also a group of children who have special educational needs and who spend all of their time in mainstream schools but get support from outside the mainstream sector. That provision is at the moment made by the local educational authority because it has a broad remit. There is no vested interest in children being brought into special schools, but there is a vested interest in transferring children from special schools into mainstream schools. The local authority has an interest in providing support services for children with special needs within the mainstream sector.
One aspect of concern to a broad range of opinion in the Committee is what will happen to children in the grey area, or the overlap as it was referred to a short time ago. If we have a system whereby each institution, whether it is a mainstream school or a special school, operates totally in isolation in terms of special schools provision in the grant-maintained sector, will there be any facility for the new funding agency to provide special educational support services for children in mainstream schools?
4.30 p.m.
Baroness Blatch: It is unfortunate that we are trying to run the whole debate on Part III on this one amendment. The amendment is actually a clear-cut facility that opens up an avenue for existing LEA special schools to become grant-maintained special schools. The very reason that we have given LEAs the sole responsibility for children with special educational needs is so that the LEA can determine a placement for a child in a mainstream school, a mixture of mainstream and special school, or just a special school. They are all taken care of in other parts of the Bill. The amendment proposes a mechanical process which opens up an avenue for special schools to make a judgment about whether they wish to become grant-maintained schools. We are in danger of trying to run ahead of ourselves and have discussions that we shall be having for many hours yet.
Lord Ponsonby of Shulbrede: This has been a very wide-ranging debate on a fairly specific amendment. Perhaps I may first clarify something. The noble Baroness's answer to the question of the noble Earl, Lord Baldwin, as to why the Government have changed their mind since 1988, was a little misleading. The 1988 Act allowed primary schools with more than 300 pupils to opt out. That could be changed by a negative statutory instrument as happened in 1989 when the figure was reduced to zero. It was not possible to create grant-maintained special schools under the 1988 Act and the Government distinguished between the smaller primary and grant-maintained schools in their response.
This is not a wrecking amendment: it goes to the heart of the concerns which we shall be discussing with regard to special educational provision in local areas.
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It seems to us that the guiding principle of the Government is one of choice, however impractical and minimal that might be in the specific area of provision for special educational needs. It seems to us that the principle of choice, as argued by the noble Lords, Lord Jenkin and Lord Renton, should not supersede the good planning, the good provision and the good co-ordination of services.
Underlying the Bill as a whole is an antipathy to local education authorities, a point we have made time and time again but the Government have yet to accept. What the whole of today's debate is about is trying to fit into the institutionalised conflict which the Government are setting up through the grant-maintained sector the special educational provision. Members on both sides of the Committee want to make sure that that provision works as effectively as possible within the Government's ideological preferences. The amendment is essentially important. It is not a wrecking amendment. It addresses all the concerns that will arise through the rest of today's debates.
For some time this afternoon discussion seemed to stray to the subject of the integration of children with special needs into mainstream schools, a debate we shall be having later today. There is concern that, with the increased competitiveness in grant-maintained schools and other schools, integration will not proceed, as we all want, where it is practical but will go into reverse. There are preliminary statistics to suggest that. That is a worrying trend, but we shall have a fuller debate on the subject later.
This is not a wrecking amendment. It goes to the heart of our concerns about provision for children with special educational needs. I am afraid that I am not satisfied with the response that we have had from the noble Baroness. I wish to press the amendment to a Division.
Baroness Blatch: Before the noble Lord sits down, and just for the record, he referred to the 1988 Act and the change of heart on both rural primary schools—small schools with fewer than 300 pupils—and special schools. Both Houses gave my right honourable friend the Secretary of State the power to come before Parliament to vary the provisions for primary schools. That was a legitimate power given by both Houses. So far as concerns special schools, I believe that the House would not have approved in primary legislation in 1988 a power simply by negative resolution to allow special schools to become grant-maintained schools. I believe that it is entirely justified that we come to this House in this way in primary legislation to allow that to be done. My definition of a wrecking amendment is: this is something the Government want to do; it is something the Opposition do not want to do. That is a wrecking amendment.
Lord Ponsonby of Shulbrede: By that definition, just about every amendment that we have put forward since I have been here would be a wrecking amendment. I am not satisfied with the Minister's reply. I should like to press the amendment to a vote.
4.35 p.m.
On question, Whether the said amendment (No. 192C) shalle be agreed to?
Their Lordships divided: Contents, 90; Not-Contents, 149.

Division No. 1

CONTENTS

Addington, L.

Kilbracken, L.

Airedale, L.

Llewelyn-Davies of Hastoe, B.

Allen of Abbeydale, L.

Lockwood, B.

Ardwick, L.

Longford, E.

Attlee, E.

Lovell-Davis, L.

Aylestone, L.

Macaulay of Bragar, L.

Baldwin of Bewdley, E.

McCarthy, L.

Bonham-Carter, L.

Mclntosh of Haringey, L.

Boston of Faversham, L.

Mackie of Benshie, L.

Bottomley, L.

Mallalieu, B.

Bruce of Donington, L.

Mayhew, L.

Carmichael of Kelvingrove, L.

Merlyn-Rees, L.

Carter, L.

Milner of Leeds, L.

Cledwyn of Penrhos, L.

Mishcon, L.

Cocks of Hartcliffe, L.

Monkswell, L.

Cudlipp, L.

Morris of Castle Morris, L.

Dean of Beswick, L.

Mulley, L.

Diamond, L.

Nicol, B.

Dormand of Easington, L.

Northfield, L.

Eatwell, L.

Ogmore, L.

Falkender, B.

Peston, L.

Falkland, V.

Pitt of Hampstead, L.

Fisher of Rednal, B.

Ponsonby of Shulbrede, L.

Fitt, L.

Prys-Davies, L.

Gallacher, L.

Richard, L.

Gladwyn, L.

Ritchie of Dundee, L.

Glasgow, E.

Robson of Kiddington, B.

Glenamara, L.

Rochester, L.

Graham of Edmonton, L. [Teller.]

Russell, E.

Sainsbury, L.

Hamwee, B.

Seear, B.

Hanworth, V.

Serota, B.

Harris of Greenwich, L.

Shaughnessy, L.

Hilton of Eggardon, B.

Shepherd, L.

Hirshfield, L.

Stallard, L.

Howell, L.

Stoddart of Swindon, L.

Hughes, L.

Strabolgi, L.

Hunt, L.

Thomson of Monifieth, L.

Irvine of Lairg, L.

Tordoff, L.

Jay, L.

Wallace of Coslany, L.

Jay of Paddington, B. [Teller.]

Warnock, B.

Jeger, B.

Wigoder, L.

Jenkins of Putney, L.

Williams of Elvel, L.

John-Mackie, L.

Williams of Mostyn, L.

Judd, L.

Young of Dartington, L.

Kagan, L.

NOT-CONTENTS

Aberdare, L.

Brightman, L.

Addison, V.

Brigstocke, B.

Aldington, L.

Brougham and Vaux, L.

Alexander of Tunis, E.

Butterworth, L.

Allenby of Megiddo, V.

Cadman, L.

Annaly, L.

Caithness, E.

Archer of Weston-Super-Mare, L.

Carnegy of Lour, B.

Carnock, L.

Arran, E.

Chalker of Wallasey, B.

Ashbourne, L.

Charteris of Amisfield, L.

Astor, V.

Chelmsford, V.

Astor of Hever, L.

Clanwilliam, E.

Auckland, L.

Clark of Kempston, L

Bauer, L.

Cockfield, L.

Belhaven and Stenton, L.

Colnbrook, L.

Beloff, L.

Cox, B.

Bessborough, E.

Craigavon, V.

Blatch, B.

Cranborne, V.

Blyth, L.

Cullen of Ashbourne, L.

Boardman, L.

Cumberlege, B.

Boyd-Carpenter, L.

Denham, L.

Brabazon of Tara, L.

Denton of Wakefield, B.

Braine of Wheatley, L.

Derwent, L.

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Ellenborough, L.

O'Cathain, B.

Elles, B.

Orr-Ewing, L.

Elliott of Morpeth, L.

Oxfuird, V.

Elton, L.

Palmer, L.

Ferrers, E.

Park of Monmouth, B.

Finsberg, L.

Pender, L.

Flather, B.

Perry of Southwark, B.

Fraser of Kilmorack, L.

Plummer of St. Marylebone, L.

Gainford, L.

Porter of Luddenham, L.

Gainsborough, E.

Portsmouth, Bp.

Gibson, L.

Radnor, E.

Gisborough, L.

Rankeillour, L.

Goschen, V.

Rennell, L.

Gray, L.

Renton, L.

Gray of Contin, L.

Renwick, L.

Guildford, Bp.

Rippon of Hexham, L.

Hailsham of Saint Marylebone, L.

Rodger of Earlsferry, L.

Romney, E.

Halsbury, E.

St. Davids, V.

Hankey, L.

Saint Oswald, L.

Harding of Petherton, L.

Saltoun of Abernethy, Ly.

Harvington, L.

Sandford, L.

Haslam, L.

Selsdon, L.

Hayhoe, L.

Shannon, E.

Hemphill, L.

Simon of Glaisdale, L.

Henley, L.

Skelmersdale, L.

Hesketh, L. [Teller.]

Slim, V.

Holderness, L.

Stewartby, L.

Howe, E.

Stockton, E.

Hylton-Foster, B.

Strafford, E.

Ilchester, E.

Strathcarron, L.

Jenkin of Roding, L.

Strathclyde, L.

Killearn, L.

Strathmore and Kinghorne, E. [Teller.]

Kimball, L.

Kintore, E.

Swansea, L.

Lauderdale, E.

Swinfen, L.

Leigh, L.

Swinton, E.

Liverpool, E.

Terrington, L.

Long, V.

Teviot, L.

Lyell, L.

Thomas of Gwydir, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Tombs, L.

Tonypandy, V.

Macleod of Borve, B.

Trefgarne, L.

Marlesford, L.

Trumpington, B.

Merrivale, L.

Vaux of Harrowden, L.

Mersey, V.

Vivian, L.

Mountevans, L.

Wade of Chorlton, L.

Mowbray and Stourton, L.

Wakeham, L. [Lord Privy Seal.]

Munster, E.

Murton of Lindisfarne, L.

Westbury, L.

Nelson, E.

Wilberforce, L.

Norfolk, D.

Winchester, Bp.

Norrie, L.

Wolfson, L.

Northbourne, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.45 p.m.
Baroness Young Baroness Young moved Amendment No. 193:
Page 90, line 34, at end insert ("and includes the provision of speech and language therapy").
The noble Baroness said: Perhaps I may move this amendment formally on behalf of my noble friend. I beg to move.
Lord Howell: I understood that it was for the convenience of the Committee that my Amendment No. 220BA would be taken in conjunction with this amendment. Perhaps I may express my appreciation to the Minister and my apologies to the Committee for not being here when the amendment should have been taken. That is due to some inadvertent information which suggested that I could have a cup of tea and that this amendment would be dealt with after dinner. I

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apologise. I have had to pay a forfeit in buying the tea which I have not consumed. That is as a result of my inexperience.
This is not a hostile but a probing amendment on behalf of the AFAISC which is an organisation with which I am connected. It is concerned with extending the spirit of Clause 159, which we have been debating. I certainly do not intend to do any more at this stage than to propose the amendment and give rough reasons for doing so. I shall accept the advice which the noble Baroness will give us shortly in response to it.
She will know that the statement to which parents are entitled about educational needs is a provision which I fully support. It is a considerable improvement on the present position. It deals with the assessment of the child's special educational needs and must specify the special educational provision which the authority judges necessary to meet the needs of those children. These amendments carry that principle a little further, recognising that with such children with very severe handicaps there are other special needs which are not essentially of an educational nature but which must also be taken into account at the same time.
One can easily imagine a whole range of such issues; for example, the availability of transport for a child and other related matters. Therefore, it seems to us that it would be a good idea, if we are moving down that road, that such an assessment should be as comprehensive as it can be and deal with both the educational and the non-educational needs of these very seriously impaired children. The organisation on whose behalf I am speaking deals specifically with children with very serious speech defects. I gather that other organisations are sympathetic to this view. Therefore, I trust that the noble Baroness will understand the reason for moving this amendment and will be able to give us her departmental or her own thinking on the matter so that we can consider it in due course. I hope that she finds some merit in extending her provisions on educational needs to include non-educational needs as far as these children are concerned.
Baroness Blatch: Perhaps I should say first to the noble Lord that I understand his feeling. I arrived to take my place in the Committee this afternoon thinking that his amendments would be considered at the end of the night only to be told that they would be considered with the second amendment of the day. I did some very quick footwork only to find that they did not come up when I had been told that they would because the noble Lord was having a cup of tea at the time. I think that we can all be forgiven for sounding slightly at sixes and sevens at this point.
I shall deal first with the point raised by my noble friend Lord Elton. I take seriously the question of co-operation between all agencies concerned with children with special educational needs, and in particular the provision of speech therapy services, first, because I know how sensitive this issue is and, secondly, because I know that it is important in all our deliberations today that the provision of speech therapy must not be left out of the equation or of the
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provision for children with special needs. I shall keep your Lordships fully informed of the outcome of the consultation exercise that is at present in hand. The code of practice, which we shall be discussing in some detail in a little while, will deal with co-operation among agencies and the provision of speech therapy. Parents will have a right of appeal to the Special Educational Needs Tribunal if they consider that speech therapy should be specified in their child's statement as special educational provision. I believe that what I have said will suffice in relation to the amendment of my noble friend, together with what we shall be saying later this afternoon on the code of practice.
Turning to Amendment No. 218B, in the name of the noble Lord, Lord Howell, I need to make it clear that, in considering the non-educational needs of a child as part of the assessment and statementing process, local authorities must be as specific as possible. They must specify any additional non-educational provision which they propose should be made for a child and set out the detailed advice upon which they have acted in drawing up the statement. Regulations made under the Bill will spell out such requirements. I hope that the noble Lord will therefore feel that at this stage his amendment is not necessary.
Amendment No. 220BA, which also stands in the name of the noble Lord, Lord Howell, is also part of this grouping. It seeks to impose by statutory regulations criteria or grounds for determining whether the provision to meet some of a child's particular needs is educational or non-educational. This is not, and never will be, an area for black or white determination and a growing child's needs will rarely fit neatly into the category of "health" or "education". They often overlap or are interrelated.
Both my department and the Department of Health recognise that responsibility for the provision of some services, such as speech therapy, cannot be categorically allocated beforehand to either health or education authorities. The most effective solution is the local one, taken in the light of local needs and service availability. This is why we attach such importance to co-operation—because it is futile to try to prescribe hard and fast rules. Therefore, I hope that, taking this debate together with the next debate on the code of practice, the noble Lord will feel able not to press his amendment at this stage.
I turn now to Amendment No. 220BB, the final amendment in this grouping. Under existing regulations, if a local authority specifies any non-educational provision in a statement, it must do so only after close co-operation with other agencies and must be satisfied that the service will be delivered by a district health authority, a social services authority or some other body.
I hope that I am not being presumptuous in saying that I hope that the noble Baroness, Lady Warnock, will agree that there needs to be a co-ordinating body that is responsible for seeing that that provision is made—whether by the district health authority, the school or the local education authority by, perhaps, a portage scheme or by some other means.

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Noble Lords will be aware from my earlier remarks that the Department of Health is already consulting about how co-operation between health, social and education services can be best achieved in supporting children with special needs. I am sure that noble Lords will wish to wait and see the outcome of that consultation before deciding how to proceed. I have promised that I will report to the House about that.
Amendment No. 220C, in the name of my noble friend Lady Faithfull, provides, first, for the inclusion in this Bill of a general requirement for co-operation between agencies, similar to that in Section—
Lord Peston: I wonder whether I may interrupt the noble Baroness. I was under the impression that again the grouping has been changed and that that amendment has now been dropped out.
Baroness Faithfull: If I may say so, we seem to have got into a terrible muddle over the groupings because Amendment No. 220C and the amendment of the noble Lord, Lord Howell, should, I think, have been grouped with Amendment No. 193C. Indeed, I asked my noble friend's colleague on the Front Bench whether I could move Amendment No. 220C with my Amendment No. 193AC which touches on the same subject as the amendment of the noble Lord, Lord Howell. Before my noble friend the Minister gives the answer to the question which I have not yet asked, I should be very grateful if I could ask the question first.
Baroness Blatch: Of course. I unreservedly apologise to my noble friend. I am finding this incredibly difficult. I have been dealing with briefing on amendments almost solidly since we left the House at 3.20 a.m. the other morning. I had an understanding of the groupings right up until I arrived at the House at 2.30 p.m. this afternoon. There have been two changes already, so I hope that I can be forgiven for being presumptuous. I was not actually answering the question—I was attempting to pre-empt the question that I thought that my noble friend would have asked. I shall, of course, now wait for my noble friend to pose her question. In the light of the explanation that I have given, I wonder whether the noble Lord, Lord Howell, feels able to withdraw his amendment.
Lord Dormand of Easington: Perhaps I may say how very much I sympathise—for once—with the Minister about the grouping. I hope that certain people are taking notice of this. One of the difficulties is that one arrives at this place—and it does not matter how early one gets here because the documents showing the grouping of the amendments are sometimes not there—but the arrangements that one had in mind simply do not arise. It has occurred time and time again over the years and something really should be done about it.
Apart from that point, which I think is important, I have risen now because I may not get the chance later to support the amendment tabled by my noble friend Lord Howell. I simply wanted to raise this point which I thought that the Minister might have mentioned. First, we must recognise the really splendid work that
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is done by speech therapists. Indeed, some of it is miraculous, as some of us with experience of it know. I do not know whether the Minister will agree—perhaps your Lordships will agree—that there is almost always, if not always, a shortage of speech therapists to carry out this necessary and important work. I am glad that my noble friend has introduced this amendment today on behalf of that organisation with which I know that he has great sympathy.
Noble Lords continually refer to their previous experiences, and I remember when I was an education officer that if we could get hold of speech therapists we would just about bribe them with anything because of the splendid work that they did. That brings me to my second point which is that there is no doubt that considerable expense can be involved in this. While we all have to take notice of the expenditure involved, I hope that the Government, through the Minister, will recognise that if this good work is to be done, enough money must be spent on it. I hope that the Minister will take those two points on board because this is a most important amendment.
Baroness Blatch: It was possible that there would be the usual response about resources. However, it is now an absolute duty to ensure that young people who require speech therapy have the provision that is determined for them in the statement. Perhaps I may speak from my practical experience in local government. I think there has been a problem with the provision of speech therapists for a very long time. Although my authority was criticised for not having speech therapy always available, that was not because there was not enough money; we had the money, but simply could not find any speech therapists. There are clearly good reasons for that. It may be to do with pay or with the status of the profession—I do not know, but one reason that was constantly given to me was that—I know that this is a sexist thing to say—speech therapists are usually very young and attractive and go off to get married and do other things.
Baroness Fisher of Rednal: I was interested in the Minister's last comments. Although it will be a duty on the local authority to provide speech therapy, that duty cannot apply if the speech therapists are not around. Do the Government intend to launch a campaign to train speech therapists for the future? If the duty is there but the speech therapists are not, there is nothing that local authorities can do about it. In any case, they are in the hands of the local health authorities when it comes to that provision.
5 p.m.
Lord Howell: I am grateful to the noble Baroness for her helpful and sympathetic response. My colleagues who are involved with children with speech impairment difficulties will appreciate the fact that the Committee has found a short time to discuss these problems. The reply of the Minister was helpful and encouraging. We shall look at it carefully and, if necessary, come back to it at another stage. But with the appreciation of those on behalf of whom I speak, I beg leave to withdraw this amendment.
Baroness Young: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 148, as amended, agreed to.
Baroness Faithfull Baroness Faithfull moved Amendment No. 193AC:
After Clause 148, insert the following new clause:
Consideration of social factors
( ".—(1) When considering a child's special needs, consideration shall be given, not only to special educational needs, but also to social needs due to adverse social conditions, disruptive family circumstances and mental and emotional disturbance.
(2) In such cases the local education authority's Education and Social Services shall consider whether residential care is appropriate to the needs of the child; and shall consider not only Emotional and Behavioural Difficulties schools but schools run by voluntary organisations, charities or on a private basis.
(3) Any costs incurred under this section shall be met by the Local Authority's Education and Social Services Departments, and such cases shall be dealt with under section 31(2) of the Children Act 1989.").
The noble Baroness said: Because of the grouping there is some difficulty here. With the Committee's and my noble friend's permission I shall speak to Amendment No. 220C with Amendment No. I 93AC. Unfortunately, Amendment No. 220C was put with the first lot of groupings and had nothing to do with them at all. I know that my noble friend Lord Jenkin wanted to speak to Amendment No. 220C—unfortunately, he has now left—and the noble Lord, Lord Howell, had an amendment down that was practically the same but with different wording. I shall proceed from there, if I may.
Amendment No. 193AC should be taken with Amendment No. 220C. That is a new clause after Clause 159. The intention behind these two amendments should also apply to Amendment No. 74, which I moved earlier in the Bill and will bring forward again at Report stage. The amendments apply to children excluded from school who have special educational needs due to social and emotional factors. I base these amendments on my experience as chairman of the governors of the Caldecott Community, an independent residential school run by a registered charity, and also on my experience as a governor of Bessel Leigh residential school, also run as a registered charity for boys with educational and behavioural difficulties. I should also say that I am a patron of the Hesley group of schools in Yorkshire, a private organisation with schools for children with educational and behavioural disturbances. With some diffidence I therefore say that my amendments are based on personal experience at the grass roots.
I am also indebted to the National Children's Bureau for its research on placement and progress in residential special schools for emotional and behavioural difficulties. The research workers state that children with emotional and behavioural difficulties have received little attention in recent years, particularly those in independent residential schools run by charities. Yet this small group of children causes serious disruption in their schools, in their communities and, sadly, in their families. This group of children tends to be those who, if not given specialised help when young, will later in life tend to
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present problems of mental disturbance and delinquency, or both, and are then at a later stage an even higher financial burden to the state.
Just to give an example, a short time ago I visited a residential independent school with 60 children run by a charity. Every girl in that school had been sexually abused within the family. A proportion of the boys had been lured into paedophile rings. These children are deeply disturbed, and I have to say here that the disturbed children in this country have become particularly difficult in recent years. I shall not go into the reasons why because we should be here not just until midnight but until next week. Perhaps that could be a debate for another time.
I have the deepest sympathy for teachers in schools dealing with a class of 30 with one of these disturbed and disruptive children in the class. I profoundly believe in community care, and wherever possible and practical children should be helped within the ambit of their families, their schools and their communities. But reality must be faced. There are some children who need highly specialised help in a residential setting such as that offered by the Charterhouse Group, the Hesley Group and others.
I say with some regret that these schools and the problems of these children have been sadly neglected and we are now paying the price. The Home Secretary is recommending the setting up at enormous cost of five units for seriously delinquent children. If the children about whom I have spoken were to be assessed and dealt with at a younger stage —and in some of these schools there are vacancies—perhaps the Home Secretary would not be faced with as big a problem as he has today with juvenile delinquency.
When considering children with special educational needs and non-school attenders, I submit that when decisions are taken as to how they should be helped consideration should be given not only to special educational needs but to social conditions, disruptive family circumstances and mental and emotional disturbances. Some of those children who have been sexually abused and have been in paedophile rings can be very disruptive in a large class, and I have great sympathy for their teachers. These independent schools run by charities in the private sector are expensive. Experience shows that local authorities, usually the treasurer's department, perhaps understandably refuse to pay, but this means that the country is gradually losing a valuable resource in buildings, in staff and in the whole ethos.
Such cases should be the joint responsibility of the education and social services departments of the local authority, both of whom should be involved in the planning process. Such cases should be cared for and helped within the social services department, and perhaps under Section 31(2) of the Children Act 1989, which deals with care and supervision orders. Since setting down this amendment I have looked again at the Children Act 1989, and it may be appropriate to meet the needs of these deeply disturbed children under Section 27, which deals with co-operation between authorities. The noble Lord, Lord Judd,

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referred to this section of the Children Act 1989 in his Amendment No. 162AA, so this is nothing new, but at that stage he withdrew his amendment.
Forgive me for going on for so long, but I have to say that one reason why treasurers will not pay for children to go to these schools is the high cost. Why is the cost so high? It is because many of our services have been dropped. For instance, the child guidance clinic service has been dropped. We do not have enough adolescent psychiatric units in our hospitals. We do not have counselling and helping facilities in the health and education services. In any event, it is hardly for teachers to deal with the home and social circumstances of children. If the facilities are not available, the children or young persons will later become, the responsibility of the social services department.
I understand from Mr. Clough, the secretary of the Residential Care Association, that the local authority social services departments could not deal with that type of child. Article 3 of the United Nations Convention on the Rights of a Child states:
"In all actions concerning children, whether undertaken by public, a private institution, Courts of Law, administrative authorities or legislative bodies, the interests of the child shall be a primary consideration".
The Minister has been most generous in the time that she has given to meet a delegation and later to see me personally. I ask her to give this amendment serious consideration. I beg to move.
Lord Judd: I pay a very warm tribute to the noble Baroness, Lady Faithfull, for what she has said. She has illustrated yet again the value in our debates of having someone with so much first-hand, almost unrivalled, experience. I live in the city of Oxford and I know how high her reputation stands for the quality of her practical service in the past. Therefore, I am sure that the Committee will listen extremely attentively to what she says. I congratulate her on bringing forward this amendment which we warmly support. I take the opportunity to pay tribute to all those who are working for the charitable and voluntary organisations to which the noble Baroness referred. They are making a powerful contribution towards meeting existing needs.
The amendment is clearly important because local education authorities and social services departments must co-operate as regards the funding of residential schools as such schools meet social as well as educational needs. That is absolutely clear, as the noble Baroness underlined. Therefore, I believe that the amendment makes an important point and makes an important provision. I hope that the Minister can receive it sympathetically. It would be deplorable and sad if we were ever to find that officials in different departments were arguing because they did not accept the joint and mutual responsibility for meeting such closely integrated needs.
Lord Northbourne: I support the noble Baroness, Lady Faithfull, in drawing attention to the importance of emotionally and behaviourally disturbed children. I am a governor of Weavers' Fields School in Tower Hamlets which deals with such
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children. There is very little mention made in the Bill of behaviourally disturbed children. Will the Minister confirm that that group of children falls squarely within the category of children with special needs?
I support the noble Baroness in drawing attention to the richness and diversity of provision available in the private sector. It can sometimes be significantly cheaper than provision in the public sector. I have experience of children who have benefited greatly from such provision.
5.15 p.m.
Lord Addington: The noble Baroness, Lady Faithful!, raises an extremely important point in an important area. The dividing line between so-called educational problems and social factors is thin and, in many cases, does not exist at all. I have been involved in a great deal of work with dyslexic children, many of whom have ended up in juvenile courts or prison. There is a direct correlation between social and educational problems. We suspect that in many cases educational problems lead to social problems. We must co-ordinate our efforts to meet those problems; otherwise both sets of problems will feed together and create a monster.
Lord Boyd-Carpenter: I do not know what the Minister will say in reply to the amendment but I hope that the reply will be sympathetic and helpful. On the face of it, it appears to be a not unreasonable proposition, even more so because of its authorship. It must be treated extremely seriously.
I agree with the nice tribute which the noble Lord, Lord Judd, paid to my noble friend Lady Faithful!. It was a proper tribute and one with which I humbly associate myself. My noble friend has an extremely impressive record in these matters and speaks on them with great authority. While not knowing what technical difficulties may or may not arise, I suggest to the Minister that there is a strong feeling in the Committee in favour of the amendment. I hope that she may be able to be helpful in connection with it.
Lady Kinloss: I support the noble Baroness, Lady Faithfull. I agree with her that not only should special educational needs be considered but also the social and moral needs of a child which may lead to a child's inability to concentrate. If personal and social needs are not considered, in time children may become delinquent or develop psychiatric problems which can sadly lead to some of the difficulties which we face today. For one reason or another, some children cannot remain in their own homes but can be helped in residential special schools.
I give as an example the Charterhouse Group and, in the private sector, the Hesley Group, which the noble Baroness, Lady Faithfull, mentioned. Their provision is expensive but that is partly because they provide services which are no longer supplied by local authorities or health authorities; for example, child guidance and psychiatric services.
The Government are extremely anxious to promote projects in the voluntary sector which involve raising considerable sums of money. Yet the Department of Health and the Department for Education appear to

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be neglecting that charitable resource. The Home Secretary is recommending setting up special units for delinquents at considerable cost to the country. That is a waste of resources. Children can be helped in those residential schools, two of which I have mentioned, where education and treatment are of a high standard. There is a definite need for early identification of children with special educational needs and a decision as to which local authority is to meet the needs of such children. I am pleased to support the amendment.
Baroness Elles: I support the amendment. I am a trustee of the Caldecott Community and I pay a warm tribute to the chairman of its governing body. If any Members of the Committee—and I include the Minister—were to visit the community to see the children resident there, they would understand that those children could not possibly be in a normal school. One can see from their behaviour that, because of the disturbing experiences they have had, they could not fit in to a normal school. In this wealthy country of ours a home must be made for them where they are nurtured, loved and looked after and where their moral, educational and physical needs are met. No places can be found in an ordinary school to meet those serious needs.
My noble friend has been too modest. She should have said that often young people leave the Caldecott Community to live a normal life in the outside world. The community has set up an outreach tutor who deals with the young people as they leave the institution so that they are able to face the facts of life living in an ordinary community. I have had the privilege and honour to meet many of those young people. I am happy to say that one would not be able to guess what were their origins or what had been their problems because of the treatment that they had received in a Caldecott home.
I agree with my noble friend Lord Boyd-Carpenter that the drafting may not be correct and may need amending but I ask the Minister to look helpfully and positively upon the spirit which underlies the amendment. It seeks to deal with a problem which is becoming worse throughout the country. I support my noble friend.
Lord Ritchie of Dundee: I was going to say that the words of the noble Baroness, Lady Faithful!, were music to me, but it seems that they were music to several Members of the Committee. I feel strongly that the educational achievements of a child cannot be extricated from that child's social background and psychological environment. It is most important that more attention should be paid to that factor. Throughout all their educational reforms the Government have tended to ignore those aspects of a child's upbringing. It is most important that they should be given greater consideration. There is a tendency to over-simplify and to behave as though our education system can be reformed merely by offering the children and teachers the carrot or the whip: tests, assessments and so on. But in fact much more understanding of the social circumstances involved is what is needed.
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I have experienced that myself. With many of the boys who went through my hands it was difficult to know whether their psychological disturbance was the result of their learning difficulties or whether their learning difficulties were the result of a psychological disturbance. They are inextricable, and must be given prime consideration. I support the amendment strongly.
Lord Renton: My noble friend has, with great persuasion and from great experience, drawn our attention to some real and difficult problems. I broadly support what she has put forward. However we should bear in mind that the amendment covers four separate kinds of problems. Learning difficulties with mental handicap, which is what this part of the Bill is concerned with mainly, present a separate problem from those who suffer from disturbed family circumstances. They may have divorced or drunken parents, but the children may be brilliant and not in need of the kind of education which caters for those—if I may use a broader term—who are backward.
The third category which may or may not derive from disturbed family circumstances is emotional disturbance. We have come across that in happy families. I am afraid that it sometimes happens in large families that one child may be disturbed. The fourth category of course is mental illness. The amendment covers all those circumstances. My noble. friend has wisely, I think, by implication, acknowledged that they have to be treated differently.
Subsection (2) of the new clause states that various possibilities have to be considered, including,
"whether residential care is appropriate".
It may well be the best answer, especially in the case of disturbed family circumstances. Then my noble friend rightly introduces flexibility by referring to:
"schools run by voluntary organisations, charities or on a private basis".
I am not sure what she is getting at when she says that, but it is right that she should include it.
I hope that I shall not be thought to be pouring cold water on the amendment by analysing, as I have attempted to do, the various problems and the various solutions to them which arise in the amendment. I should like to join with those Members on both sides of the Committee who have asked my noble friend the Minister to give serious thought to the amendment and to the problems that it covers.
Earl Russell: If it were just a matter of welcoming the amendments, I should be a silent member of the majority, but I should like also to say that I believe that they provide an ideal legal framework for considering cases about which I do not believe there has been much thought; that is, the treatment of the children of women in refuges. That is a matter which involves so many departments and so many authorities, but it is a situation where the five left fingers have to be told individually what the right hand is doing.
Already we have involvement by the Home Office, the Departments of Health, Environment, and Social Security and the Welsh Office. I do not believe that there has yet been any involvement by the Department for Education. Women in refuges regularly arrive with

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their children. It is normally better in such circumstances for the children to stay with the mother. They are intended to be short-stay places, but for reasons normally to do with housing, and irrelevant to today's debate, they are not always so.
Those children have educational needs. The amendments provide the framework within which those educational needs may be considered. Attendance requirements here have to be applied with flexibility. They are not always in a fit mental state to go to school when they arrive, but one hopes that as time passes it may be possible for the outward shell of normality to return. Amendment No. 193AC would give a legal authority for the discretion which is needed in applying the law in that situation.
It is also a regular problem that local authorities tend to say that those people come from other boroughs and are none of their business. They normally do. It is necessary for the women's safety. So it may sometimes be difficult to persuade local authorities that they have a legal obligation for the education of those children. I express no view on whether education for those children should be grant-maintained or under the local authority, but a duty to ensure that they are educated should rest somewhere. That could possibly be something which might be considered in guidance. Where consultation with the local authority of origin is needed, Amendment No. 220C would provide the machinery under which it could happen.
I am not asking the Minister for any firm opinions now. I am asking her to consult other departments involved in this issue, and, in particular, the noble Baroness, Lady Cumberlege, whom I have always found extremely helpful on this issue, and the interdepartmental group to be set up by Mr. Michael Jack which he announced at Question Time today. Since the amendment mentions the Children Act, perhaps I may ask at the same time for consultation with the Women's Aid Federation about the implementation of the Children Act in the context of domestic violence, because there are problems there with which I shall not detain the Committee now.
Baroness Park of Monmouth: I, too, support the amendment moved by my greatly respected noble friend, with particular reference to the child who is seriously and continuously disruptive because of a bad and deeply troubled family background which may itself produce mental and emotional disturbance. What is a teacher to do if one child, not through wickedness but through emotional and mental disturbance, makes it impossible for the others to learn, and requires the full and exclusive attention of a teacher if it is to benefit by any education?
The school and the parents alike need to know that in such cases it will be recognised that the local authority's education and social services will accept a joint responsibility for finding a way to educate and care effectively for the child, probably in the way proposed in the amendment. As my noble friend said, because the problem is partly educational and partly social it is wrong that children should fall between two stools. Of course, it will cost money, but surely that
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must be set against the cost of the spoiled education of not just that child but the others in the class if nothing can be done.
5.30 p.m.
Lord Swinfen: If the proposed new clause is brought into effect it will help not just the present generation of such children; it will also help their children because the children who need that help now will in the next generation produce other children who need the same help, and so on. It is a very brave attempt by my noble friend to break a cycle. Further, resources given to those children at this stage which may be expensive to the community in terms of time, trouble and money will be repaid a thousandfold as they become productive members of society when adult, rather than spending the whole of their adult life in need of additional help and wasting resources which could be used elsewhere. Other speakers have raised many points with which I agree, but the latter, so far as I know, is one which has not yet been raised.
Baroness Brigstocke: I, too, should like to add my modest support for the amendment of my noble friend Lady Faithfull. Most of the points I wished to make have already been made. I know that it is very bold of me, but I question the remarks made by my noble friend Lord Renton. I think that there are many more than four categories of emotionally and behaviourally disturbed children. When a teacher is faced with a child who is clearly deeply disturbed and disturbing and disrupting the class, she does not have time to pause, analyse and work out what would be the right diagnosis to give there and then; indeed, one just has to deal with the situation. I should like to see an acceptance that the overall responsibility for helping that child and ultimately for paying for the diagnosis and the treatment is a shared one.
Finally, I should like to draw the attention of the Committee to a recent paper published by Whitbread PLC. The company trades in many inner-city areas where there is an unbelievably high proportion of children with emotional and behavioural difficulties. The paper is entitled Teaching and Learning in cities. I should like to quote a few lines reported in the paper on the response from Richard Martineau who was formerly Affairs Director of Whitbread PLC. The extract reads:
"While collaborative partnerships are essential he is fearful in the current climate of change and uncertainty for the future of these arrangements and the consequences for those inner city schools without adequate resources to purchase the necessary support services".
Baroness Fisher of Rednal: I happen to be a governor of a local authority school which caters for seriously maladjusted children with emotional needs; in other words, the children for whom the schools are not able to cater. It is a five-day-week residential school on the outskirts of Birmingham. But on occasions we find that even we have to exclude a pupil, although we have all the facilities and assistance possible to help those who need to be helped.
With the number of exclusions that are now taking place in local authority schools, it is important that there are facilities available for them. We shall be able

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to cater for the groups of children about which the noble Baroness, Lady Faithfull, spoke so ably if the money is made available. I believe that figures have been given during the past fortnight of exclusions from schools. It is a matter which the Government must seriously consider. I give all my support to the amendment moved by the noble Baroness, Lady Faithfull.
Baroness Blatch: At the outset perhaps I may say how good it is to see the noble Lord, Lord Ritchie, in his place. I know that he has not been in the best of health. I must tell him that his portfolio has been looked after most ably in his absence; but, nevertheless, it is good to see him back.
I should like to join with all Members of the Committee and say at this point how much admiration I have for the worked carried out by my noble friend Lady Faithfull on behalf of all children with special educational needs, and in particular her contribution to the well-being of children with emotional and behavioural difficulties. Drawing on her extensive experience, I know that she has worked tirelessly to ensure co-operation between local authorities and social service departments and to promote, and indeed protect, those schools, including those in the non-maintained and independent sectors, which do so much for a vulnerable group of children. It is worth noting that most of the children we are talking about in those schools are in fact placements of the local authorities. That is what happens now. That is what we want to see.
I wonder whether my noble friend would think it in order if I were to address Amendment No. 220C now.
Baroness Faithfull: I would be most grateful. I have not elaborated on the matter because, although Amendment No. 220C is basically the same, it is broader and encompasses various other points. It is possible that other Members of the Committee may wish to speak to that amendment.
Baroness Blatch: My suggestion was not meant to extend the debate too much. However, that amendment is grouped with this one and I hoped to be able to address it at the same time.
Amendment No. 220C has a general requirement for co-operation between agencies similar to that in Section 27 of the Children Act to which my noble friend referred. The amendment also provides that, when specifying non-educational provision, the local authorities should always be satisfied that such provision will be provided either by the local authority or by another agency. The means to greater co-operation between agencies is precisely the subject of the consultation exercise which the Department of Health is now conducting. I hope that my noble friend will agree that we should await the outcome of the exercise before proceeding further.
As to that part of my noble friend's amendment which deals with the specification of non-educational provision, I hope that she will accept my assurances that, as now, regulations will continue to make it plain that local authorities should always be satisfied that non-educational provision will be made before that
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provision is specified on a child's statement. I hope that my noble friend will also be reassured by what I said about the contents of the code of practice and about parents' rights of appeal. But again we shall deal shortly with the code practice in some detail.
The need for greater assurance and co-operation has been put to us forcefully during the consultation process on the provisions which now form Part III of the Bill. In particular, it has been suggested that the Bill might include a general requirement on district health authorities and social service departments to comply with a request from an LEA on behalf of a child with special educational needs. That proposal is reflected in the amendment before us today tabled in the name of my noble friend Lady Faithfull.
In response to those representations, the Government have accepted in principle the need for greater assurance about co-operation between the agencies concerned. The Department of Health has therefore embarked on a consultation process (which I just mentioned) and has asked a sample of purchasers and providers of health and social care for children, their representative organisations, relevant professional organisations and voluntary groups how, by legislation, guidance or otherwise, assurances can be given that the health and social services contribution to assessments and the preparation of statements can be made in a timely manner. Indeed, the same levels of co-operation among health, social services and education services can be achieved in supporting children with special educational needs, as are prescribed in the Children Act.
The consultation process is therefore designed to secure the kind of co-operation envisaged in the amendment tabled in the name of my noble friend, without threatening the necessary independence of the health service. I am sure that, like me, my noble friend will wish to await the outcome of the consultation process before deciding how to proceed.. The consultation will conclude on 14th May. I shall consider the results most carefully together with my colleagues in the Department of Health and will bring our conclusions to the House during the Report stage of the Bill.
The noble Earl, Lord Russell, was concerned about the children of women in refuges. The purpose of the Bill—and, indeed, the responsibility of education departments—is to be concerned about children, whether they are travellers' children, children in secure families, children in insecure families or children of women in refuges, as the noble Earl, Lord Russell, mentioned. We have strengthened the rights of parents considerably not just in this Bill but generally throughout the education service. Therefore, any one of the people I have referred to could take his child to any school and, provided there was room, that school would be obliged to accept the child. The child would fall right into the full panoply of special educational needs if the child had such needs.
As regards the point the noble Earl made on consultation, we will do all we can to pursue that matter with our colleagues in the Department of Health who are also responsible as regards the provisions of the Children Act. I have explained the

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consultation exercise which the Department of Health is presently conducting. That exercise is designed to secure closer co-operation between agencies working on behalf of children with special needs. One of the proposals referred to in that exercise would, if adopted, reproduce in education legislation the provisions of Section 27 of the Children Act whereby social services departments are already required to assist local education authorities with the provision of services for any child in the area in question who has special educational needs. I look forward to the outcome of that consultation and I shall report back to the Chamber at Report stage.
I share my noble friend's admiration for the work of non-maintained special schools and indeed independent schools which cater for children with special educational needs. I share the view of all Members of the Committee who have said that this is particularly demanding and challenging work for anyone. Clearly, we have to recognise that. I know that many such schools provide a valuable service for children with emotional and behavioural difficulties. They often take children who exhibit the most challenging and extreme forms of behaviour. It is in the interests of both the individual child and of society as a whole that these children should be given the help they need. Failure to do so can mean a wasted life for the child and problems for the rest of society in the future.
I recognise my noble friend's concern about the future of these schools. I am confident that such schools will continue to make a valuable contribution in the new regime envisaged in this Bill. To do so, those schools, which are autonomous, fee-charging organisations, must market their services to customers. All such schools should engage in a continuous dialogue with placing authorities to find out what their requirements are. They must then persuade those authorities that the provision which they offer will meet the needs of children and will be thoroughly cost-effective. I have had meetings with my noble friend and representatives of those institutions. Occasionally they have a jolly good case to put to local authorities for better and more cost-effective provision. As we expose the costs of local authority provision, that position will be revealed, and that is a good thing.
Local education authorities and social services departments place children in non-maintained and independent schools which cater wholly or partly for children with special educational needs. I believe that the Bill's provisions will help ensure that they continue to do so. In particular, parents will have a right to make representations to local education authorities to the effect that their child should be placed in a school outside the maintained sector. Authorities will be obliged to consider those representations. Moreover, if parents are dissatisfied with the outcome, they may appeal to the new SEN tribunal. If the tribunal finds in favour of the parents, it may order the local education authority to arrange provision in a non-maintained or independent school.
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The Committee will be aware that in 1989 my department gave guidance, in the form of Circular 23/89, on provision for children with emotional and behavioural difficulties. That circular dealt with such matters as the range of emotional and behavioural difficulties, learning strategies and objectives, the implications of the national curriculum for the schools concerned and the size, scope, age range and organisation of the schools. It also dealt with pupils over 16, single sex or co-educational schools, boarding schools, staffing and staff training. There was also guidance on improving support services for the most difficult pupils and their schools. For those who are concerned about support services, I should say that we have left the responsibility for providing those services to those with special needs with the local education authority in the Bill.
The existing guidance has proved useful to those working with children with emotional and behavioural difficulties. Nonetheless, a number of developments in the intervening years, not least the implementation of the Children Act, the publication of the Utting Report Children in the Public Care, and the Warner Report Choosing with Care, the introduction in this Bill of a new duty on local education authorities to provide education otherwise than at school, and increasing concern about children with emotional and behavioural difficulties mean that the time is now right for the Government to issue further guidance on the full range of these issues.
The Department for Education and the Department of Health, working closely together, will over the next few months draw up for consultation inter-related guidance on matters which I know are of particular concern to my noble friend. We have in mind guidance covering the following issues. First, in the context of school discipline and exclusions, we shall draw up guidance on how schools can best act to recognise and resolve disciplinary problems. Secondly, in the light of the new duty on local education authorities to provide other education, we shall draw up guidance on how LEAs can best fulfil that duty with the aim, wherever practicable, of returning pupils to school as quickly as possible. My noble friend Lord Elton is not in the Chamber but that matter concerns him particularly. Thirdly, in the light of the recommendations of the Utting Report, Children in the Public Care, and the Warner Report, Choosing with Care, we shall issue guidance to all those concerned as to how the education of children who are being looked after by local authorities can most effectively be delivered. Fourthly, in the light of this Bill and through the code of practice which we shall debate in detail in a moment, we shall issue guidance to schools and local education authorities as to how they should best identify and assess children with special educational needs. Fifthly, but not least, in the light of concerns expressed by my noble friend, we shall issue guidance to local authorities and schools on provision for children with emotional and behavioural difficulties.
Let me say something in more detail about the proposed guidance on children with such difficulties. I envisage that the guidance will recognise the full

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extent of the difficulties facing such children. In so doing, it will place emphasis on the role of the family and acknowledge that where family support is lacking or is inadequate, schools and other agencies must give children the security of an assured framework in which they can learn and develop. I envisage, therefore, that the guidance will look first at the role which mainstream schools can play in providing sensibly managed education. I envisage that it will stress the importance of the early identification of emotional and behavioural difficulties and offer guidance on intervention strategies and examples of good practice. In this respect and others the guidance will reflect the code of practice to be issued under the Bill.
I envisage that the guidance will also deal with action to help those pupils who may require statements of special educational need as a result of their emotional and behavioural difficulties. In doing so, the guidance will stress the importance of co-operation between local education authorities, social services departments and health authorities. The guidance will then cover the question of the appropriate school placement for children with emotional and behavioural difficulties. In that respect, the Department for Education will ensure that all local education authorities and social services departments are given regularly full information about the full range of non-maintained special schools and independent schools approved for the admission of children with statements which offer appropriate provision. Finally, the guidance will, I envisage, stress the importance of keeping such placements under regular review, noting that the making of a statement, particularly a statement reflecting emotional and behavioural difficulties, should not mean that the child will always require such a statement.
In short, the Government are taking action to meet the concerns expressed by my noble friend. The Department of Health has embarked on an important consultation process with a view to securing closer co-operation between the agencies concerned. We shall issue guidance aimed at improving practice and provision for a wide range of vulnerable children; and we shall, in particular, issue guidance addressed to local authorities and schools about provision for children with emotional and behavioural difficulties.
The noble Lord, Lord Northbourne, asked me a particular question on this matter. The children he mentioned fall foursquare into the category of children with special educational needs. The noble Baroness, Lady Fisher, was concerned about exclusions and the increasing incidence of exclusions from schools. I believe that we shall be dealing with that matter in some detail next Tuesday. The noble Baroness made an important point and I shall be tabling some interesting amendments on behalf of the Government which will, I believe, meet many of the concerns expressed.
I can give assurances that we shall consult very widely before promulgating guidance. The dedication and expertise of those working with children are crucial to our plans for improvement. The guidance we offer will draw on that expertise and reinforce it, we
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believe to the general benefit of the children concerned. I hope that in the light of what I have said—and I hope that the Committee will forgive the length of time I have taken to say it—my noble friend will agree to withdraw her amendment.
Baroness Faithfull: I thank my noble friend for such a clear exposition of what is being considered in both her department and other departments. We are very grateful to her for taking so much time to explain her point of view.
I wish to thank all Members of the Committee who have spoken in the debate on the amendment. I should like, with some diffidence, to thank the Committee for the tributes which have been paid to me. I would not have been able to say what I said had it not been for the fact that I learnt from both the staff and the children, and particularly the children. One child said to me, "How old are you?" When I told her that I am over 80 she said, "Coo, lumme! You must be on the way to heaven".
I thank the Committee for showing such interest in the issue. The Minister in particular has shown a great interest. It would be quite wrong to divide the Committee on this issue because everyone has shown such an interest. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 149 [Code of Practice]:
Baroness Blatch Baroness Blatch moved Amendment No. 193B:
Page 90, line 40, after ("authorities") insert ("and the governing bodies of maintained or grant-maintained schools, or grant-maintained special schools,").
The noble Baroness said: I hope that we shall not get in a muddle with this group of amendments. I shall speak briefly to Amendment No. 193B and then respond later to Amendments Nos. 194. 194A, 194B, 195, 195ZA, 195A, 195B, 195C, 196 and 197, which are grouped with my amendment.
The purpose of Amendment No. 193B is to enable the code of practice to offer practical guidance to the governing bodies of all maintained schools as well as to LEAs and make it clear that those governing bodies must have regard to the code in carrying out their functions under Part III of the Bill and that other bodies, in particular the special needs tribunals, must also have regard to the code.
As I have said, with the permission of the Committee I should like to listen to what the Committee has to say on what I believe is the heart of the debate on this part of the Bill and then respond in some detail. I should like in particular to speak about the legal status, scope and nature of the code of practice. That code is the most important document, together with other provisions of the Bill. It will set the framework for special educational needs in the future.
I should also like to say at the outset of the discussion on this group of amendments that I believe that this is a subject which unites the whole of the Committee on all Benches. Any debate we have today will be of means rather than ends. I beg to move.
Lord Simon of Glaisdale: I do not know at what stage it would be convenient for me to intervene in this

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boldly grouped series of amendments to speak to Amendment No. 195 which stands in the name of the noble Lord, Lord Campbell of Alloway.
I was incautious enough to make a noise of assent when the noble Lord, Lord Campbell, spoke at Second Reading. As a result I find my name on the Marshalled List, without warning that the noble Lord would be abroad and unable to move his amendment. I am very glad that my noble friend Lady Warnock is here to support me, because she is, of course, a main source of Part III of the Bill.
The amendment concerns the legal status of the code of practice to which the Minister referred and how it is intended to operate when it affects the parents, the child and the local authority and others concerned. It is a matter of considerable constitutional importance but it is by no means an academic issue. It concerns the welfare of children with learning difficulties and the rights of their parents.
As the Committee knows well, there are roughly three grades of statutory provision. At the top is the primary legislation, which is contained in this bulky document. In addition there is delegated legislation, which is considerable in the case of this Bill in which there are well over 100 powers to delegate legislation. Massive as is the part which appears above the surface, what is below the surface and as yet unseen is positively titanic. Both those modes of provision give rise to legally binding obligations. The third grade of provision, with which the Committee is concerned this evening, is codes of practice, which do not ordinarily give rise directly to legal obligations. This is exceptional, and that is the point that was made by the noble Lord, Lord Campbell of Alloway, at Second Reading. In this case the code of practice is quite exceptional in that it gives rise to legal obligation. Perhaps I should say that the noble Lord, Lord Campbell of Alloway, is acknowledged as the foremost and most knowledgeable exponent of codes of practice in our constitution.
The oldest and most familiar of the codes of practice is the Highway Code. Like other similar codes of practice it gives advice and guidance but it does not give rise immediately and directly to legal obligation. In that code we are told that when we turn to the right we should signal that we are going to do so, but if we do not signal there is no immediate civil or criminal liability because we have merely been advised to do so. It is certainly a matter which any court, civil or criminal, will take into account, but it is only one matter and failure to observe the code may not give rise to any legal obligation.
Most codes of practice are similar to the Highway Code in that respect. Where this code differs is that it gives rise to an obligation. That is because this part of the Bill provides that local education authorities have not merely to provide facilities and make provision for those who have learning difficulties but are under a very important and crucial obligation to assess where the need arises. From that assessment two rights accrue to the parents. One is a right to appeal to the special educational needs tribunal to which the noble Baroness referred.
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I see that the noble Earl, Lord Elton, has returned. I fear that I pre-empted his position. However, no doubt he will be allowed to speak when I have finished.
I was saying that the parent who claims to have a child in need of special provision can either appeal to the tribunal or can complain to the Minister, according to the grievance in question. The noble Baroness, Lady Blatch, was kind enough to send me a copy of a long letter that she wrote to the noble Lord, Lord Campbell of Alloway. I do not propose to summarise it because she has indicated that she wishes to explain her position on the amendment in due course. However, there is one crucial sentence in that letter which is the nub of the matter. She wrote, rightly, that local education authorities are not bound to follow the code of practice but that if they depart from it they must justify that departure. In other words, it is clear that in that respect the code of practice, in this case differing from the Highway Code and all the other codes, constitutes a prima facie case when it is breached. That is why the noble Lord, Lord Campbell of Alloway, with his vast experience, has put down the amendment.
I know that the Secretary of State has his scheme of reforms. I, for one, have been persuaded by it. I also know that he has been much irritated and frustrated by some local education authorities occasionally not co-operating fully. But that makes it all the more dangerous to give the Secretary of State completely unlimited discretion. Even the awkward squad is entitled to a clear word of command. That is what the amendment seeks to achieve.
The terms of the amendment are these. Instead of "have regard to"—those words are perfectly suitable in the case of a purely advisory, guiding code of practice—the amendment seeks to substitute the words,
"take into account and implement in so far as is practicable in the circumstances".
That gives a considerable discretion, which is perfectly workable. The words "so far as is practicable in the circumstances" appear in almost every section of the factories legislation and indeed this Bill uses them in a few later clauses.
Lord Renton: Before the noble and learned Lord sits down, will he agree that compared with the words "have regard to" which are in the Bill, the words of the amendment merely make a change of emphasis in the exercise of the discretion?
Lord Elton: I hope that Members of the Committee will forgive my joining the debate a little late and perhaps unsuitably attired. I am, as it were, in a migratory phase during which I had hoped to speak in the debate.
I shall speak briefly under the circumstances. Amendment No. 194 simply adds to the duty to give guidance to local education authorities, as set out in Clause 148, a duty to give that guidance also to others. Amendment No. 193B extends the provision to include a duty to give guidance to various governing bodies. My amendment, for instance, includes the tribunal referred to in Clause 160, the district health

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authorities referred to in Clause 166 and the independent schools referred to in Clause 178. Those bodies all have a role to play in the sphere overseen by the guidance and they should have copies of it.
Amendment No. 194A addresses a matter that I hope my noble friend will state is to be covered in the guidance. It proposes that the guidelines should lay down time limits for the completion of the various stages leading up to a statement. The provision is badly needed. Noble Lords at Second Reading gave examples of statements which have taken 18 months to two years to deliver during which time the child has missed the boat on education. I shall not give instances at this stage.
Amendments Nos. 195A to 195C propose acceptance of the advice endorsed by the noble and learned Lord, Lord Simon of Glaisdale. I am becoming accustomed to being promoted by the noble and learned Lord. At our last meeting he kindly promoted me to chairman of the Select Committee on scrutiny of delegated powers which I blushingly denied and attributed to my noble friend Lord Rippon. He now advances me to the condition of Earl. However, I believe that that is simply because I am overdressed.
The advice given in paragraph 23 of the report of the scrutiny committee was that it would be appropriate at least in the first instance for such important guidelines to be subject to the affirmative procedure. Once they have become established perhaps minor revisions of the orders might be subject to the negative procedure. My noble friend will have something to say on that.
Amendments Nos. 209 and 210, although not within the grouped list, will be subject to the guidance to which we refer. They refer to plans for education otherwise than in schools which may be the subject of the guidance about which my noble friend will speak. My amendments simply seek to require it always to be the aim of a plan of education for a child otherwise than in school, except when it is neither appropriate nor possible, to be returned at the earliest possible opportunity to mainstream education.
My committee on discipline in schools observed the rapid deterioration of children's educational chances when they were taken out of mainstream education, for example, because of the difficulty of providing the full range of the national curriculum for a small number of children in specialist treatment, or for other reasons. We were unanimous then, and I believe that the Committee agrees, that children taken out of school for special education should be returned to such education unless the circumstances set out in Clause 153(3) are not satisfied.
Baroness Darcy (de Knayth): Perhaps I may speak to Amendment No. 195ZA which stands in my name. I support the amendments of the noble Lord, Lord Elton. I support too what my noble and learned friend Lord Simon of Glaisdale said about the status of the code.
I shall try to be brief, but as the Committee will understand the amendment has five paragraphs. Originally, five amendments were intended for the face of the Bill. The noble Lord, Lord Campbell of
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Alloway, suggested that such provisions should properly be in the code of practice. I am grateful to the noble Lord. I am delighted that he has added his name to the amendment.
Paragraph (a) refers to the officer of the authority. He plays a crucial role. He can make or mar the parents' experience of statutory assessment. We believe that one should build on the existing good practice. It would therefore be helpful if the code of practice spelt out the details of that officer's role.
Paragraph (b) refers to information on voluntary organisations. Assessment and statementing is a stressful time for the family. The voluntary organisations can help with advice. They can put the family in touch with other families with children with special educational needs, professional advisers, advocates, or trained volunteer befrienders. The special education consortium is keen on that being in the code of practice to ensure that LEAs appreciate the need for these services, the importance of early referral and that it is desirable to support them to some extent financially. SNAP (the special needs advisory project) in South Wales is a very good example of a befriender scheme which is part funded by an LEA.
Paragraph (c) refers to:
"the manner in which a statement should specify the type and amount of special educational provision".
At present many children have statements. which fail to specify the special educational provision which should be made for them either in terms of the type—for example, teaching, non-teaching or therapeutic—or in terms of the amount: the hours, lessons, sessions per week, month, term etc. The special education consortium has sent copies of statements which include (I shall give just one example) loose wording:
"X will have the support of a helper in the school".
That statement does not provide any protection for the child; it gives no information to the parent and little to the school. Clearly, it is vital that the code should explicitly and unambiguously set out just what is meant by specifying the special educational provision in the statement.
Paragraph (d) deals with parental permission before naming a residential school. Specifying a residential placement for a child without the agreement of the parents runs entirely counter to the spirit and intent of the 1981 Act, and should it come to ensuring that a child attends such a school, would run counter to the provisions of the Children Act. The consortium feels that an LEA should have the written permission of a parent before a residential school is named. Obviously we look to the code of practice to see precisely how the LEA should go about it.
Finally, paragraph (e) refers to,
"the amount of notice to be given to parents … [on] issuing a draft statement, or amending an existing statement".
Every September there are large numbers of children with special needs who are out of school because LEAs have issued their proposals to change their provision or type of school too late in the previous term for parents to appeal. At times the late delivery of the draft statement or a proposal to amend the statement cannot be avoided. Very often the child

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involved has been known to an authority for years. In a disturbingly large number of cases there is no explanation other than that the short notice given is intended to put parents under pressure to accept the LEA's verdict. The legal right to appeal still exists, but by exercising that right parents can find that their child has no school to attend come the beginning of the new school year or only a school which they believe cannot meet their children's needs. That matter needs to be sorted out. I very much look forward to the Minister's reply, not only on this amendment but on all the others in this group.
The Deputy Chairman of Committees (Lord Elliott of Morpeth): We are dealing at the moment with Amendment No. 193B, which I should now like to put to the Committee.
Baroness Blatch: When I spoke I believe that I said that Amendment No. 193B is grouped with Amendments Nos. 194, 194A, 194B, 195, 195ZA, 195A, 195B, 195C, 196 and 197.
The Earl of Radnor: Having heard that, perhaps I dare, with the leave of the Committee, speak to Amendment No. 196. I promise to take only a very short time. The subject I wished to deal with has already been covered by my noble friend Lord Elton. My point was simply that there should be an obligation upon the Secretary of State to lay this code of practice before both Houses of Parliament. My amendment dealt with that provision simply by changing the permissive "may" into "shall". My noble friend's amendment does the same in a different way; it is slightly more elaborate and, I am quite sure, more efficient. The difference between our two amendments is that he has followed the affirmative line and, by the use of "may", I have allowed what is in the Bill already, which I believe is the negative procedure.
The code of practice is absolutely essential to the whole working of Part III of the Bill. It seems almost unbelievable that the Secretary of State should not be absolutely obliged, by one procedure or the other, to lay the matter before Parliament so that both Houses can scrutinise it, throw it out, have it re-submitted or whatever. It would be quite wrong if that did not take place. Apart from everything else, it is a pity not to recognise the enormous skill that exists both in this Chamber and in another place in matters of education. It would be a pity not to use such skills to best advantage.
6.15 p.m.
Lord Ponsonby of Shulbrede: I should like to address myself to a few of the amendments contained in this group. I refer first to Amendment No. 195 standing in the name of the noble Lord, Lord Campbell. The term "have regard to", although weak, is a conventionally recognised term in law. It implies that local authority procedures have been shaped by the whole code of practice. The term means that LEAs have to show why they are not conforming to the spirit and intention of the code of practice. The phrase,
"take into account and implement in so far as is practicable in the circumstances",
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is, in my reading, far weaker because it implies that the LEA has the option of piecemeal usage depending on the circumstances of the code. This amendment—I believe the point was made by the noble Lord, Lord Renton—may be posed in terms of realism. I wonder whether it undermines the intention of the code itself.
Perhaps I may now turn to Amendments Nos. 195A and 195B in the name of the noble Lord, Lord Elton. They address an extremely important clause. LEAs now have one main strategic responsibility left after the Bill; namely, meeting pupils' special educational needs in the widest sense. LEAs are responsible for pupils with learning difficulties, emotional and behavioural difficulties and disabilities and also for pupils who are out of school. A code of practice—there seems to be a consensus in this debate—will therefore not only define how an LEA reviews and implements its special educational needs responsibilities but also to a large extent the shape of the local education authority itself. Additionally, it will define how a local authority will approach its residual education responsibilities in terms of liaison with other departments. A code of practice is therefore much more important than enactment regulations such as the regulations implementing the 1988 Act assessment arrangements. Any new code of practice must therefore be subject to scrutiny by both Houses, especially the House of Lords, which has more time to examine the detail of any such code—although I must say that I feel a little punch drunk after the time that we have spent on it during the past couple of weeks.
Perhaps I may quickly turn to Amendment No. 195 in the name of the noble Lord, Lord Elton—and I must say that I wondered whether he had been promoted to Doorkeeper when he walked into the Chamber—
Lord Elton: I have been promoted yet again. But Amendment No. 195 is not in my name.
Lord Ponsonby of Shulbrede: In that case I shall not say anything about Amendment No. 195 as it applies to the name of the noble Lord, but I was about to say that it is somewhat confusing if read in the context of the whole of Clause 150. The implication could be that the Secretary of State need only issue for consultation a copy of a revised code rather than the original code. But be that as it may.
Most importantly, I wanted to support the noble Baroness, Lady Darcy (de Knayth), in Amendment No. 195ZA. It seems to me that many of the voluntary organisations which have an interest in special education spend a large amount of their time filling the information gap which is currently there. These tasks, if the amendment is accepted, can concentrate the efforts of everyone who comes into contact with parents as they struggle to get adequate provision for children with special educational needs. The practical support offered by the voluntary sector will be more fully utilised and the efforts of all concerned are more likely to be successful if statutory and voluntary organisations work together with parents.
That work must begin by parents being fully in the picture about what help and advice are available. The onus is an those agencies which have contact with the

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family to make sure that parents know of voluntary organisations that might be able to help them. The 1981 Act's injunctions to that effect have not been fully effective. Therefore the Bill must reinforce the order to health authorities, for example, to extend it to local education authorities.
Amendment No. 195ZA seeks to reinforce the 1981 Act's concept of the named person—someone to liaise with parents about their children's education and to ensure that they have a port of call within the local education authority to provide information and help and to negotiate the best outcome and maintain a continuity of provision amid the confusion which many people feel when dealing with their own children with special educational needs. There seems to be a consensus about the general thrust of this group of amendments.
Baroness Warnock: I have lost track of whether it might be appropriate at this point to speak in support of Amendment No. 195, which has attached to it the name of the noble and learned Lord, Lord Simon of Glaisdale. Before we hear more about what the code of practice will include, it seems relevant to raise the question of the status of the code with regard to local authorities.
I am in no sense a legal expert. Until this afternoon I had no idea of the status of the highway code. I had always wondered about it. All I knew was that one had to learn it. I took the advice of the noble Lord, Lord Campbell of Alloway, knowing him to be an expert, and therefore assumed that the amendment as it stands in his name strengthened the status of the code of practice rather than weakened it. I simply want to register strong support for anything which strengthens the status of this code, whatever that code may be. We know that whatever is in the code will be of the greatest importance when it comes to work on the ground. I would like to support Amendment No. 195 on the assumption that the legal experts have got the matter right.
Baroness Faithfull: I should like to speak to Amendment No. 197 which stands in my name. We have spoken about a code of practice. This is something of a chicken and egg situation. Will there be a code of practice and, if so, at what stage shall we have the code of practice? We cannot have the code of practice until we finish the Bill. One is not quite sure at what moment one should have the code of practice.
My amendment seeks to provide that:
"No code or practice under section 149 … shall be made unless a draft has been laid before, and approved by resolution of, each House of Parliament".
I propose that the code of practice should be subject to the affirmative resolution, which means that the code of practice, before becoming law, comes to this Chamber and, I think I am right in saying, has to be reviewed every year.
Baroness Blatch: As I said at the outset, this code of practice is central to Part III of the Bill. Therefore, I hope that the Committee will bear with me as I address the detail of the code and then refer to the amendments in particular.
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The amendments before us relate to the code of practice which the Secretary of State must issue under Clause 149. In addressing the issues raised by the amendments, the Committee may find it helpful if I describe at this stage the legal status, scope and nature of the code. The code, taken together with the regulations made under the Bill and the Bill's primary provisions, will set the framework for special education in the future. The code will be, therefore, an important document.
How we are producing the code and when we expect to issue a draft for consultation are matters that I want to address. I know that this has been of concern to the Committee and that sight of a full draft of the code will be welcomed. But I hope that, when I have finished speaking, there will be an understanding that that is impossible at this stage.
Drafting a code of practice of the kind we have in mind is a major undertaking. It is absolutely vital that we get it right. We have, therefore, commissioned respected expert consultants to help us. Their work is being presented to an advisory group drawn from the local education authorities.
We shall issue a draft code, together with draft regulations, for consultation in the autumn. That consultation, I can assure the Committee, will be full and thorough. All concerned will have every opportunity to make their views known. We shall consider reactions to the draft very carefully indeed. When we have done so, my right honourable friend the Secretary of State will lay a final draft before Parliament on present plans in the spring of next year. I shall return to that issue in a moment.
In short, we are benefiting from expert advice in drafting the code and shall seek comments from all concerned when that draft is ready. The code, and the associated regulations, must, if they are to be effective, command the broadest possible consensus. In these matters we regard seeking a consensus as very important.
I turn to the legal status of the code. I stress first of all that the code must be seen in context. It will stand alongside the primary provisions of the Bill and the provisions to be introduced through regulations. Those regulations will deal with such matters as the manner in which the assessments are to be conducted, the advice which authorities should seek, the time in which assessments and statements should be completed (that was another point raised by my noble friend Lord Elton), the form and content of statements (the noble Baroness, Lady Darcy (de Knayth), referred to that point) and the review of statements.
Regulations will also prescribe the information to be included in schools' annual reports to parents on their special needs policies. The three elements taken together —the Bill, the regulations and the code—form the new framework for special education.
The code itself will not impose duties. It will offer practical guidance to those bodies to which it applies as to how they should carry out their functions under Part III. It will deal with matters which are not susceptible to hard and fast rules, matters where an element of judgment is always required. It would be

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neither sensible nor, I think, possible to lay down at the centre strict rules as to how in every case, with no room for manoeuvre, responsible professional people are to proceed when dealing with children with special educational needs. But it is right that, having consulted all those concerned, the Government should offer guidance as to how vitally important procedures can best be carried out to the benefit of parents and children. That is our aim for the code.
That said, the code will have its own special legal status. It will be laid before Parliament and carry parliamentary approval. Moreover and most importantly, those to whom it applies will have a duty to have regard to it. That is no light duty. By law, those who must have regard to the code cannot ignore it. If they do so, they will be in breach of a duty. They do not, however, have to follow the code to the letter and in every particular. But any departure from the code will, if challenged, require justification—to parents in the first instance and then, depending on the circumstances, to the Secretary of State if the matter at issue is the subject of a statutory complaint, or to the new special needs tribunal if the matter at issue is the subject of an appeal. In justifying their actions, those to whom the code applies will have to show that the alternative action they took produced results which were at least as beneficial as those which would have resulted from their following the code. If that is not the case, that authority will be found wanting. So the code will be effective, will promote good practice and will benefit children both when it is followed to the letter and where some alternative approach is found to be preferable in the particular circumstances.
The status of the code in offering guidance is the reason why we thought it right that its approval by Parliament should be subject to the form of negative parliamentary procedure specified in the Bill. That has been standard practice with codes of this kind. Nonetheless, as I have already said, the code is an important document. I have seen the views of the Select Committee on the scrutiny of delegated powers. I understand the strength of feeling among Members that the code should be subject to the affirmative procedure. I readily defer to the Select Committee and to that strength of feeling. In doing so, I take the view that, if the code is subject to the affirmative procedure when it is first made it should also be subject to the same affirmative procedure if and when it is subsequently revised. That is the intention of the amendment in the name of my noble friend Lady Faithfull. The adoption of the affirmative procedure would, of course, mean that the code would always be laid before Parliament before it was issued. Thus, if the Committee is content, I shall take these matters away, have drafted the wording necessary to implement my noble friend's wishes and return it to the House at Report stage.
Now let me say something about the scope of the code—the bodies to which it will apply. I know that, during the passage of the Bill, some anxiety has been expressed that, while the Bill does much to improve the position of those children who already require
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statements, more could be done for those who have special needs but who do not require statements—the so-called "18 per cent."
The amendments before us in my name, in envisaging the extension of the code of practice to include guidance to schools in exercising their functions under Part III, directly address the question of "the 18 per cent." They should be seen alongside amendments which the Government introduced in another place. Those earlier amendments gave effect to our intention that, henceforth, all maintained and self-governing schools should draw up, publish and report annually to parents on their policies for all their children with special needs—"the 18 per cent." as well as "the 2 per cent."—and that registered inspectors in their four-yearly inspections of schools should look closely at the effectiveness of those policies. The amendments also make it clear that local education authorities are empowered to provide specialist support services to assist school governors in implementing their policies and carrying out their duties towards all pupils with special educational needs.
We shall make regulations which will govern the issues which schools' policies must address. Among those issues will be schools' procedures for identifying, assessing, teaching and monitoring the progress of all children who have special educational needs. Schools' policies will, therefore, be closely related to the code of practice. That code, if the amendments in my name are accepted, will apply to schools and will offer guidance as to how they should identify, assess and help children with special needs, long before any statutory intervention to make assessments or issue statements is necessary.
Those provisions—promoting school special needs policies, empowering LEAs to provide special needs support services and extending the code of practice to cover all children with special needs in all maintained schools—mean that the Bill will represent a most significant advance in provision for all children with special educational needs, not only "the 2 per cent." with statements but also "the 18 per cent." without.
If the amendments in my name are accepted, the code of practice will be addressed to local education authorities and the governing bodies of maintained schools. By virtue of Clause 149(2), as we propose it is amended, LEAs and governing bodies together with those bodies which assist local education authorities in carrying out their functions under Part III—for example, social services departments, district health authorities and the new special needs tribunal—must have regard to the code.
In applying to all those bodies across England and Wales, the code will promote a consistent and coherent approach to the education of children with special needs. The very fact that LEAs will know that the SEN tribunal must have regard to the code when determining appeals will, I believe, serve to improve practice and promote adherence to the code long before the appeal process. The code should, therefore, serve not only to inform the appeal process but also restrain the number of cases going to appeal.

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I turn now to the guiding principles which will inform the code. Taken together with the primary provisions of the Bill and the regulations, the code should embody the following principles. First, that the needs of all children with special educational needs, those who require statutory assessments and those who do not, those who are of school age and those of pre-school age, should be identified and assessed as early as possible and as quickly as is consistent with thoroughness. Secondly, that provision for all children with special educational needs should be made by the most appropriate agency—in most cases the child's mainstream school—without a statutory assessment but in a small number of cases by the LEA through issuing a statement. Thirdly, that schools should receive clear guidance on the steps they should take to identify, assess and monitor all children with special educational needs. Fourthly, that schools and LEAs should be given clear criteria as to when a statutory assessment may be necessary and when a statement should follow. Those criteria should generate greater objectivity and hence a larger degree of national consistency in the making of assessments and statements.
Fifthly, LEAs should receive clear guidance on the procedures which they should and—where regulations require—must adopt in making assessments. Thus, regulations and the code should: subject LEAs to time limits; promote partnership between LEAs and parents at all stages of the process; promote partnership between LEAs and schools, grant-maintained and LEA-maintained, mainstream and special; promote partnership between LEAs and other statutory agencies; acknowledge the important contribution which voluntary bodies are able to make to the assessment process; and make provision for LEAs to take into account the ascertainable wishes and feelings of the child concerned, considered in the light of his or her age and understanding.
Sixthly, and finally, the code and regulations should ensure that LEAs are given guidance on the writing of clear, thorough and specific statements and on the naming, in the light of parental preference or representations, of an appropriate school, whether within the maintained, non-maintained or independent sector and whether day or residential.
Those are the principles which we envisage should inform the code. I want to say something now about the contents of the code. In doing so, I shall concentrate on two matters with which I know your Lordships have particular concern: first, the under-fives and, secondly, the identification and assessment of children of school age.
First, then, the under-fives. The code will promote the principle that the early identification of special educational needs and early action to address those needs can be the most effective means of preventing or at least alleviating later difficulties. The code will note that those needs can be addressed in a variety of settings—including the home, a portage scheme, a child development centre, a nursery school or class, a pre-school play group or an opportunity group. The code will stress that, whatever the setting, all staff working with young children should fully understand
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the procedures to be followed and the range of services available to meet children's special educational needs. I should add that we shall expect schools with provision for the under-fives to have clear policies for identifying, assessing, teaching and monitoring the progress of all children under five who have special educational needs.
Beyond that, I envisage the code embodying the following features. The code will pay particular attention to the role of parents, stressing that their involvement can be of enormous benefit to their children and that schools and LEAs should provide parents with the fullest possible support during the different stages of the assessment process. Many parents, particularly those with younger children, find the identification and assessment of special educational needs to be frightening and confusing. Those parents themselves need information, advice and support, delivered in a sensitive and supportive manner, from both statutory and voluntary agencies. Therefore, I expect the code to refer to the particular advantages of portage and other parent-support schemes, including those provided through the voluntary sector.
The code will stress the importance of close liaison and full exchange of information between all the agencies concerned—local authorities, district health authorities, social services departments and voluntary agencies.
The code will also contain guidance on the assessment of children under five, stressing the importance of reports from the child's teacher, playgroup leader or day care provider; the involvement of child health services; the need to give parents full information about the range of services available to them, including relevant voluntary agencies; and the need to ensure that assessment is always conducted in a supportive manner, with proper regard to the sensibilities of the child and his parents.
The code will set out guidance on the content of statutory statements for children under five, stressing the need for clear objectives, accurately specified provision, but a necessary degree of flexibility to account for the rapid development of children of this age—and the need, therefore, for regular reviews of the statements. At the same time, the code will offer guidance on the contents of statements for children under two, which are not statutory and will be rare, but when made should be carefully considered, conform to the standards of statutory statements and should, in particular, specify the educational provision to be made for the child.
In summary, the code will recognise the importance of effective and early action to meet the special needs of children under five. It will promote good practice among all concerned and it will recognise the vital roles that parents can play in helping their children and that statutory and voluntary agencies can play in helping parents.
I turn now to the identification of children of school age who have special educational needs. It is essential, if the code is to be effective, if children's special needs are to be identified and met early, and if there is not to be an inordinate and unnecessary demand for

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statutory assessments and statements, that the code should recognise, as the noble Baroness, Lady Warnock, recognised in her seminal report some 15 years ago, that there is a continuum of special needs. I know that to be a point that the noble Baroness has emphasised since the introduction of the 1981 Act. It is essential therefore that the code should cover the identification and assessment of the 18 per cent. (those children who have special needs but who do not require a statement) as well as the 2 per cent. (those whose special needs are best met through a statement). It follows that the code should ensure that responsibility for identifying and meeting needs is properly assigned—to schools for the great majority of pupils with special needs, and to local authorities where their intervention is necessary. The amendments in my name will ensure that these objectives are met.
The report of the committee chaired by the noble Baroness, Lady Warnock, envisaged a five-stage assessment model. That model has been widely influential and adopted in various forms by many local education authorities across the country. I envisage that the code of practice will adopt and as necessary, given the passage of time, adapt a staged assessment model along the lines of that originally proposed by the noble Baroness. In doing so it will stress that, before the local authority intervenes, schools should have made every effort to meet the special needs of the pupil concerned. It will recognise the continuum of special educational needs and emphasise partnership between schools and LEAs within that continuum, rather than a sharp division between pupils with and without statements. At stage one the child's teacher and the head teacher should consult together and thenceforth monitor the child's progress closely. At stage two the school's special needs co-ordinator should be involved and specific programmes with clear objectives should be set. At stage three outside professional help should be obtained even though responsibility for the child remains with the school. At all of these initial stages parents should be kept fully informed and be closely involved in helping their child and monitoring his or her progress. At the same time, clear evidence of the child's performance should be recorded in a form which will be useful later if a statutory assessment is needed. The emphasis will be on meeting the child's needs in the school. There should be no assumption that the child should move through these stages. Indeed, quite the contrary: the assumption should be that action taken by the school, with outside help as appropriate, will be the most effective way and that LEA intervention will be unnecessary.
Nonetheless, in a small minority of cases the local authority will need to intervene. The code will offer guidance to schools and LEAs as to when such action will be necessary. The governing criterion is likely to be that a statement will be required when the child clearly needs provision additional to that which the school can provide, having demonstrated with clear supporting evidence that it has used its best
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endeavours on behalf of the child and followed the code of practice through the initial stages. We are now at stages four and five.
The criteria governing the making of assessments and the issuing of statements will therefore emerge naturally from the provisions of the code for identifying children's special needs within the school. Our aim is to ensure that early action is taken to help children with special needs and that there is a greater degree of objectivity and reduced scope for conflict at the point at which statutory assessments or statements are necessary. The code of practice to be issued under this Bill will promote consistency in practice while allowing for a diversity of forms of provision. It will improve procedures both in itself and by virtue of being the document to which the tribunal must have regard in determining appeals. It will serve as a guide to parents, as to what they can expect of schools, local authorities and other agencies. It will thereby enhance accountability. Taken together with the regulations and the Bill itself, it promises a new, commonly understood and accepted framework for provision for all children with special educational needs.
My amendments, Amendments Nos. 193B and 194B, make it clear that the code will apply to maintained and grant-maintained schools and special schools and that those schools, and any bodies assisting local authorities or those schools in the performance of their functions under Part III, and the tribunal must have regard to the code. I hope I have explained why I regard these amendments as essential if the code is to be an effective document and is to be of benefit to pupils without statements as well as to those who require statements.
Amendment No. 194, in the name of my noble friend Lord Elton, is designed to extend the scope of the code. I venture to suggest that the amendments in my name will fully deliver what my noble friend seeks. Amendment No. 194A, again in the name of my noble friend Lord Elton, calls for the code to offer guidance on time limits for the conduct of assessments and the making and implementation of statements. I believe I have said enough to satisfy my noble friend in that regard.
Amendment No. 195ZA, in the names of the noble Baroness, Lady Darcy (de Knayth), and the noble Baroness, Lady David (to whom I am sure we all wish to send our sympathy on this occasion and whose absence from her seat is wholly excusable), will oblige my right honourable friend the Secretary of State to issue in the code of practice guidance on a number of matters. I hope that what I have already said will assure all noble Lords and Baronesses that the code will address precisely the kind of issues that they have in mind. It will cover procedures to be adopted by local authorities; the role of voluntary organisations; the content of statements; and the naming of a school. However, I have to say that there is no provision for parental permission for naming a residential school and that the name of an appropriate school should be, as far as possible, agreed between the parents and the local authority; in other words, there is no question of forcing residential provision on parents. In dealing with the naming of a school, whether in the first

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instance or by amendment, the code will contain guidance to the effect that, as far as is practicable, the timing of changes should not be such that children are out of school for any substantial length of time. I hope therefore that the noble Baronesses will accept my assurances and agree that it would not be appropriate for an amendment of this nature—which after all offers only a most selective list of the topics to be addressed by the code—to appear on the face of the Bill.
Amendment No. 195, in the names of my noble friend Lord Campbell of Alloway (who is also not in his seat), the noble and learned Lord, Lord Simon of Glaisdale, and the noble Baroness, Lady Warnock, seeks to alter the legal status of the code. I hope I have explained that the code will offer guidance as to how LEAs and others are to carry out their functions under Part III. It must be read together with the primary provisions of the Bill and the provisions of regulations. Those primary provisions and regulations will impose duties. Those to whom they apply will be obliged to implement the provisions. But the code will not impose duties. This amendment is not therefore appropriate for a code of the kind we envisage. Nonetheless, as a result of the combination of the primary provisions of the Bill, the regulations made thereunder and the code of practice, I believe that this legislation will deliver what the noble Lords want and that the amendment is unnecessary.
Amendments Nos. 195A and 195B in the name of my noble friend Lord Elton seek to ensure that, when first made, the code will be laid before Parliament and its approval will be subject to the affirmative procedure. My noble friend Baroness Faithfull went further and said that not only should it be subject to the affirmative procedure at the outset, but that that should be the position subsequently. I have conceded that point and will bring forward an amendment at Report stage.
I thank the Committee for its indulgence. This is a crucial part of the Bill. The code of practice lies at the heart of our provisions to meet the needs of children with special needs. I commend the amendments in my name to the Committee. I hope that in the light of all I have said noble Lords will agree to withdraw their amendments.
6.45 p.m.
Lord Elton: I have the next amendment on the Marshalled List. First, I am entirely satisfied by what the Minister has put forward on the three issues that I addressed. Secondly, I hope that in the absence of my noble friend Lord Campbell of Alloway, somebody will say what a splendid collection of amendments this is and how this part of the Bill fully meets the very worthwhile Private Member's Bill that he put forward and withdrew. I think that his withdrawal has borne great fruit. Thirdly, although sometimes I feel that my noble friend gives us every syllable that we need, on this occasion I believe that we need every syllable that she has uttered for the introduction of a new and fundamentally important policy.
Lord Ponsonby of Shulbrede: I too should like to thank the Minister for her very full reply to the debate. Perhaps she can tell us whether the advisory group on the code of practice will include teachers, parents and governors.
Baroness Blatch: It would be injudicious of me to give a spot answer as to the precise composition of the group. But I will write to the noble Lord and will make my reply available in the Library.
Lord Simon of Glaisdale: The noble Lord, Lord Elton, has rightly preceded me this time as he is entitled to both by the position of his amendment in the Marshalled List and by the state of glory in which he has appeared, making most of us feel rather shabby. I too should like to thank the noble Baroness for her very full reply. It will require careful study. But I am bound to say that the noble Baroness did not answer either the legal and constitutional point made by the noble Lord, Lord Campbell of Alloway, or the point made by my noble friend Lady Warnock; namely, that the change of wording emphasises the importance and increases the power of the code of practice.
Both those issues are interconnected. In the end, it comes to this. In this context—I emphasise that in view of what the noble Lord, Lord Renton, said—the words "have regard to" can mean anything, and words that can mean anything mean nothing. You can "have regard to" the code of practice if you glance at it before throwing it into the waste paper basket. The trouble is—I come back to the constitutional point—that it is then up to the Secretary of State, on a complaint, to say, "I am not satisfied that you had proper regard to the code of practice". And no one can say him nay.
Baroness Blatch: I am most grateful to the noble and learned Lord for giving way. His interpretation is not quite right. Where, for example, a local authority with abandon disregarded the code of practice, if a parent was satisfied with the placement, that would be an end to it. But if a parent was not satisfied with that he or she would have, first, informal opportunities to complain. However, the complaint would be dealt with at a local level by the tribunal. It would be the tribunal that would make a judgment as to whether the local authority had proper regard for the code of practice or whether the provision it had offered, having disregarded the code of practice, was effective or less effective as a result of its actions.
Lord Simon of Glaisdale: I am afraid that that will not do. There are two quite separate procedures. One is to appeal to the tribunal, and the other is to complain to the Secretary of State. It was the latter that I was dealing with at this stage. The local education authority has no power once the matter has gone to the tribunal or gone to the Secretary of State. As the noble Lord, Lord Campbell of Alloway, explained to the noble Baroness, the process of judicial review is not available.
Although I am bound to say that the noble Baroness has not answered those two points, it seems

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to me better that the matter should be left to be considered on Report when the noble Lord, Lord Campbell of Alloway, will be here.
The Earl of Radnor: I shall not move Amendment No. 196 in view of the concession made. I thank my noble friend for such a useful answer.
Baroness Darcy (de Knayth): I thank the Minister for her full and satisfactory reply to Amendment No. 195ZA.
On Question, amendment agreed to.
[Amendments Nos. 194 and 194A not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 194B:
Page 90, line 42, leave out from ("of") to end of line 43 and insert:
("( ) local education authorities, and such governing bodies, exercising functions under this Part of this Act,
( ) any other person exercising any function for the purpose of the discharge by local education authorities, and such governing bodies, of functions under this Part of this Act, and
( ) the Special Educational Needs Tribunal").
On Question, amendment agreed to.
[Amendments Nos. 195 and 195ZA not moved.]
Clause 149, as amended, agreed to.
[Amendment No. 195A not moved.]
Clause 150 [Making and approval of code]:
[Amendments Nos. 195B to 197 not moved.]
Clause 150 agreed to.
Clause 151 [Review of arrangements]:
Lord Judd Lord Judd moved Amendment No. 197A:
Page 91, line 21, after ("shall") insert ("from time to time determine the extent of the special educational needs of the children in their area and shall").
The noble Lord said: In moving this amendment, perhaps I may also say a few words to Amendments Nos. 198, 199 and 206ZA which are grouped with it. We see the amendment as particularly important. It places on local education authorities a specific duty to audit the extent of special educational needs of children in all schools, including LEA and grant-maintained schools. We would submit that is essential for planning.
I am sure the Minister will argue that there are enough information-gathering powers already in the Bill. For that reason, I have been taking a look at the provisions within the Bill as they affect such information gathering. I see that in Clauses 144 and 153 there is a requirement that every school should publish its special needs policy in its annual report. But there is no requirement on the school to send the annual report to the local education authority. Similarly, the Secretary of State will also require governors to publish this information; but, again, there is no requirement on the LEA to gather such published information.
Clause 146(4) of the Bill requires the governing body to make any reports or returns to the LEA as the authority may require for the purpose of the exercise of those functions. But this is a general function not specific to special educational needs. Clause 18(3) of the Bill allows the Secretary of State to exercise his
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powers to gather information on children with special educational needs. But that is not a requirement on the LEA to gather information.
I suggest that all this makes it abundantly plain that there is no clear requirement on the LEA to initiate an audit of special educational needs. It is true that many authorities have certainly produced excellent review documents. The DFE has outlined in a number of circulars—DES Circular 11/90 and DES 7/91 are examples—components and matters to which a review should refer. However, too often reviews are patchy and do not pick up gaps in educational provision. Indeed in some authorities, reviews are only reviews of the workings of existing provision and ignore, for example, as the Audit Commission pointed out, the needs of girls with emotional behavioural difficulties.
There are many other areas of needs which are often ignored. These include support for pupils with special educational needs in nursery education, including the need for assessment nurseries; additional provision for pupils with severe learning difficulties who have emotional behavioural difficulties; health authority provision, including physiotherapy and speech therapy; educational psychologists and special education support staff who are heritage language speakers; and Welsh language special education support teachers.
The most obvious gap in provision, which has been addressed by the Coopers & Lybrand report, commissioned by the National Union of Teachers and the Spastics Society, entitled Within Reach, is access for pupils with physical disabilities. That report found very few authorities had initiated access audits for pupils with physical and sensory disabilities. Little research existed on the accessibility either of primary schools or secondary schools. The conclusion of that report was that meeting the needs of pupils with physical disabilities was not particularly high with the exception of start-up costs for premises conversion and transitional staffing costs. In speaking to this amendment I emphasise the question as to why two independent organisations should have found it necessary to conduct the research which should surely have been available before the Government formulated their legislation.
There is another important reason for this kind of audit. A number of authorities, including Kent, have initiated a special needs audit for allocating their non-age weighted pupil unit money to pupils with special educational needs without statements. From all accounts, it is working well and teachers are satisfied with the process, if not with the cash amounts which come after the auditing takes place. The importance of this auditing procedure is that it allows schools systematically to review the needs of their pupils.
This amendment simply puts into logical form the consequences of the requirement on the LEA to review its provision and to deliver it properly. What the amendment does not do is to destroy the partnership between the LEA and the schools in its area, whether they are grant-maintained or LEA maintained schools. It should start a reasonable dialogue between schools and the LEA about how

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best and most efficiently special education provision can be delivered. In fact, it will place no extra work on schools since all the amendment will do is to require schools to put in standard form the information which they will have gathered for their annual report special education policies.
Very briefly, a word on Amendments Nos. 198 and 199, which I believe will be in order. The reluctance of the Government to acknowledge the obvious conclusion of their policy—that the sole strategic responsibility left to LEAs is provision for pupils with special educational needs in the wider sense—has left a planning confusion at the heart of the Bill. One example of that planning confusion is probably enough. If an LEA decided to close a school for pupils with physical disabilities and set up a resource-based unit at a grant-maintained school in its area, and an order had been made for the LEA area either under Section 10(1) (a) or 10(1) (b) and the funding agency objected, which body would have the say in the final planning decision?
Some might argue—we obviously have not pressed it or formulated it—that what is really needed after Clause 151 is perhaps a new amendment saying something like, "the funding agency shall have regard to the review responsibilities of a local education authority where an order has been made under Section 10(1) (a) or 10(1) (b)".
Perhaps I may also say a word on Amendment No. 206ZA. Existing Clause 153(4) outlines a new duty,
"for each county, voluntary, maintained special or grant-maintained school shall include a report containing such information … about … the governing body's policy for pupils with special educational needs … [in the schools] 'annual report'".
This report covers both the provision for statemented pupils and non-statemented pupils. LEAs are able directly to inspect their own schools to ensure educational quality and to see whether the LMS budget is being spent properly. They can match the school's annual reports, and what they say, with what, in reality, is going on in relation to special needs. However, LEAs have no way of seeing whether the annual reports on special needs from grant-maintained schools are actually a true reflection of provision. Yet I would argue that local education authorities would have to know the appropriateness of the grant-maintained school placement of a child with a statement; and whether the initiation of a statement from a grant-maintained school actually reflects the true circumstances surrounding the need for a statement. It is essential that the LEAs are able to inspect grant-maintained schools so that they can plan statemented provision properly.
For all those reasons I believe that, taking into account everything that has been said already in the debate today, this would be a very good overview provision which would ensure that there is a sound, strategic approach based on good, comprehensive information available to all those carrying responsibility and involved in making and carrying out the necessary policies. I beg to move.
7 p.m.
Baroness Warnock: I support Amendment No. 197A and I shall speak very briefly to Amendments Nos. 198 and 199. I am extremely grateful to the Minister for everything she has said about the code of practice. We have advanced a long way as a result of the details which we have heard. I feel particularly grateful for that. Nevertheless, I still feel grave anxiety about the concept of strategic planning. I tabled Amendments Nos. 198 and 199 in order to clear up this matter. When I speak about planning I am also speaking about finance because it is impossible for a local education authority to know how to make provision for the children with special needs in its area unless it also knows quite clearly what is going on in the grant-maintained schools.
I was in discussion yesterday with the director of education for Shropshire. He showed me a letter that he had written to the DFE asking for clarification as regards his position, supposing that a grant-maintained school, or one that was to become grant-maintained, had a unit for the provision—I believe it was for deaf children in this particular case, but it was for some specific disability. He wanted to clear his position as regards the numbers in that unit and therefore what other provision he might need to make for that particular category or kind of child.
He was told by the Department for Education that if an LEA-maintained school has a unit and then becomes grant-maintained, the unit is then part of the grant-maintained school. That is perfectly understandable. The LEA can then play no direct part in any future decisions to change the number of places at the unit or to close it. Such decisions would either be for the Secretary of State or for the funding agency, depending on the proportion of GM schools in the area.
That seems to highlight the difficulties for an LEA in making any plans for future provision for children with special needs if it is the case, as the department seems to think, that once a school becomes grant-maintained it would have full control over all the children, even if they had special needs and even if they were statemented, provided that they were in a grant-maintained school.
I find it very difficult to understand that as compatible with a number of other things which we have been told about the retaining of responsibility for children with special needs by the local education authority. I shall be grateful if the Minister can explain how a local authority is to plan if it is true that it has absolutely no say whatever in whether a unit is, let us say, closed in a grant-maintained school.
Lord Addington: I shall speak briefly to all the amendments in this group, and in particular, to Amendment No. 206ZA which appears in my name. All these amendments have one common theme running through them; namely. that they try to involve the local education authorities in the provision of special educational needs which they were initially given the duty to do under the 1981 Act and which has been reaffirmed in Clause 151. Thus it is very important that we try to introduce some coherence

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into the picture because, as the noble Baroness said, local authorities must have some say over what happens if they are to have that responsibility. That follows on.
Amendment No. 206ZA, standing in my name, is probably the long-stop position of this group of amendments in that it is probably more moderate and less direct in saying what the powers of the local authority shall be. I must admit that I should prefer some of the earlier amendments to be accepted rather than this, but I hope that the Government will see it as a compromise. Basically, it states that, focusing on the SEN provisions made by grant-maintained schools, the proposed new arrangements should provide for LEAs to address the difficulty, through the schools inspectors, without bringing in the Secretary of State or his officials. The amendment merely provides a more moderate method, and I hope that it will be considered.
Lord Renton: I hope that the noble Lord, Lord Addington, will forgive me if I do not follow him on Amendment No. 206ZA, which I am sure my noble friend Lady Blatch will deal with. I hope to set the mind of the noble Baroness, Lady Warnock, at rest by showing that her amendments are not necessary. I wish to speak primarily, however, to the first of this group of amendments, moved by the noble Lord, Lord Judd. I refer to Amendment No. 197A. Clause 151 reads:
"A local … authority shall keep under review the arrangements made by them for special educational provision".
The words "keep under review" impose a very definite and wide obligation. I do not see how a local education authority can keep such arrangements under review without doing what Amendment No. 197A suggests, which is,
"from time to time determine the extent of the special educational needs … in their area".
It seems to me therefore that Amendment No. 197A adds nothing. It does not add to the meaning or the effect of Clause 151.
Lord Judd: I am grateful to the noble Lord for giving way. This is not a theoretical observation; it is based on reality. We have seen reviews produced by some local education authorities and it is clear that what is understood by "a review" can vary very much from one authority to another. I beg to submit that "review" is not a definite and specific term or injunction, as the noble Lord suggests.
Lord Renton: Perhaps I may respectfully beg to differ. If local education authorities are not to fail substantially to keep the matter "under review"—and it has to be done in the light of the other clauses in this part of the Bill—they are bound to determine the extent of special educational needs in their area. They cannot make a review without doing so. I suggest that our Bills are long enough without unnecessarily introducing words which add nothing of value to their meaning or effect. I hope that I am not being vulgar if I say that this is over-egging a very big pudding.
Baroness Warnock: I am afraid that there is still some confusion. The noble Lord, Lord Renton, quoted Clause 151 as though my Amendment No. 199 had already been accepted because he spoke about arrangements "in their area". In fact, the words in the clause are,
"the arrangements made by them".
That was why I introduced my second amendment, Amendment No. 199. I was anxious to explore which arrangements we are talking about—whether it was the arrangements made by the local authority for local authority schools or arrangements made for the whole area, including grant-maintained schools. This is a terribly important point. I find it interesting that the noble Lord misquoted the Bill.
7.15 p.m.
Lord Renton: I owe an apology to the noble Baroness for not mentioning her amendment, as I was intending to do. As I said, she wants to add the words "review" and "and shall plan", but a local authority cannot observe the various provisions which follow Clause 151 without planning. Frankly, it adds nothing to say that they shall plan because they must plan all the time. They cannot avoid planning. Therefore, with great respect, to add the words "and shall plan" when dealing with the question of a review adds nothing.
Perhaps I should also point out, with deep respect, that Amendment No. 199 overlaps with Amendment No. 197A. Local authorities are very jealous as to areas. I cannot imagine that one local authority would start to review circumstances in another local authority's area without causing a good deal of friction. I suggest that we can take it that a local authority will review the circumstances in the area for which it is responsible, and not those in areas for which it is not.
Baroness Warnock: I am sorry to go on a bit, but I think that there is a certain confusion. I am not proposing that local authorities may start planning for areas other than their own. My fear is, on the contrary, that they will be unable to plan for the area that is their own because they will find that they may not go into schools to carry out inspections or audits if those schools are grant maintained although, geographically, they are still within the area for which the local authority is the responsible authority. That is my fear.
Baroness Faithfull: I wonder whether I can get something clear from the noble Lord, Lord Judd, and the noble Baroness, Lady Warnock. What do we actually mean when we talk about "plan"? Do we mean that a local authority must ensure that within its area all the necessary facilities are available for all the different types of children who need special educational provision? Do they have a role for planning to review the whole situation? Supposing that a local authority finds several mothers with, for instance, mongol children or dyslexic children and there are no facilities in the area for such children, whose business is it to see that those facilities are available within that area? Is it the local authority's

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business to see that, to "plan" and then to "review"? I think that we are slightly confused, and I should like to be put straight on the matter.
Baroness Blatch: The straight answer is that it would be the responsibility of the local authority to see that there was provision to meet the needs of mongol children or of children with whatever special difficulties. It would be the local authority which would have the procurement powers to make sure that the appropriate provision was made available to those children.
Baroness Warnock: How is that compatible with the judgment of the Department for Education that a local authority will have no say in the question of whether a special unit in a grant-maintained school might be closed or enlarged? I cannot see how that is compatible with planning in the sense that the noble Baroness, Lady Faithfull, was talking about "planning", which was my sense of "planning" also.
Lord Swinfen: I agree with the need referred to in this group of amendments, but I am worried that Amendment No. 199, in the name of the noble Baroness, Lady Warnock, might be somewhat limiting in that it limits local authorities to the planning of the facilities "in their area". In my view if there is a single child with a special need where that special need is being catered for in a neighbouring authority's area, an authority should be able to use that neighbouring authority's facilities rather than setting up its own. I have a feeling that this amendment might force authorities to set up their own facilities, which in some ways would be rather ridiculous.
Baroness Warnock: If that were a consequence of this amendment I would want it reworded so that undoubtedly a neighbouring area, or even an area miles away, could be used if it was more suitable. I do not take any particular stock over the wording of this amendment.
Baroness Seear: I should like to know from the noble Lord, Lord Renton, what he meant on one point. I think he said that "review" included "plan"; that there is no need to add "plan". But surely "review" simply means that you make a map of what is there. Surely that is a review. In terms of the English language when you have made your map you have "reviewed". That word does not imply that you then make a plan, does it?
Lord Renton: If the noble Baroness would look at Clause 151 she would see:
"A local education authority shall keep under review the arrangements made by them".
Arrangements and plans are synonymous. If the noble Baroness looks at the subsequent clauses and all the obligations placed upon local authorities with regard to providing for those with special educational needs, she will see that they could not possibly carry out these things without making plans or arrangements.
Baroness Blatch: I wonder whether it would help if I set out what I believe to be the case? I believe that
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there is some confusion as to what is in a word. Professor Joad comes to the fore with, "It all depends what you mean by …".
Baroness Seear: I think that the noble Baroness meant—
Baroness Blatch: I said Professor Joad, not Professor Judd.
Baroness Seear: I think that the noble Baroness meant Humpty-Dumpty, "It means what you want it to mean".
Baroness Blatch: No, I did not, but there is certainly some confusion around the Committee and I thought it might help if I intervened at this moment.
This Bill gives local education authorities, school governors and the FAS clear responsibilities towards pupils with special educational needs. Those responsibilities do not exist in isolation and apart from each other: they form constituent and complementary parts of a coherent system of special educational provision.
I seek to reassure the Committee that we fully share the general concern that the Bill's provisions and subsequent action by all parties should protect and indeed enhance provision for children with special educational needs in any one area and more generally. It is right that LEAs should have significant responsibilities in this respect. But, however beguiling it may sound, it is not right that they should have sole responsibility, nor an overall strategic role. Our policy is that self-governing schools should contribute as fully as possible to the provision for children with special needs in an area and that, where appropriate, the FAS should also play a role. Our objective is, of course, that their joint efforts should improve the provision of special educational needs in the area as a whole.
There are three key points at which the provision of special needs services in an area need to be properly considered between an LEA and, as appropriate, the FAS and individual schools in the grant-maintained sector. They are the acquisition of GM status by an LEA-maintained school; the establishment of a new GM school; and when an existing self-governing school wishes to change its character.
Clauses 45 and 46 and Schedule 3 govern, respectively, the establishment of a new GM school by the FAS, the establishment of a new GM school by a promoter and the acquisition of GM status by a school maintained by the LEA. Schedule 3 says that the proposal for GM status for a school's governing body must describe the provision to be made at the school for pupils with special educational needs. Clauses 45 and 46 require the FAS and promoters to consult appropriately and to have regard to guidance which the Secretary of State will issue when making proposals for the establishment of a GM school. Clauses 91 and 92 govern the procedures when the FAS or governors of a grant-maintained school wish to apply for a change in the school's character. Those clauses also require the FAS or governors to consult and to have regard to guidance from the Secretary of State before publishing relevant proposals.

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I wish to give an assurance today to the Committee about the guidance which the Secretary of State will issue. That guidance will specify that before publishing proposals to change the character of a grant-maintained school the governing body or the FAS should consult the LEA over any alteration in the provision of special educational needs that the change would entail. Similarly, guidance will state that before publishing proposals to establish a grant-maintained school the FAS or the promoter should consult the LEA over the special educational provision the school proposes to make for its pupils with special educational needs. The FAS will of course already be under the duty in paragraph 3(2) (b) of Schedule 2 to have regard to the need for securing that special educational provision is made for pupils with special educational needs; and all school governors remain under their duty in Clause 153 to use their best endeavours to secure special educational provision for their pupils.
We have already debated the provisions of the Bill underpinning the collaboration through the exchange of information between the parties—the FAS, LEAs and GM schools—particularly in Clauses 6, 18 and 146. The code of practice will guide schools on the identification of their pupils with special needs. Governors and teachers should therefore know the numbers of pupils with special needs and the type of need in their schools. But—and this is important—should the authority require that information to carry out its functions, it has the powers to request that information under the 1986 Act in the case of LEA maintained schools and under Clause 146 in the case of a GM school. Furthermore, the FAS and the LEA are required to provide each other with information or conduct such research as may be necessary for the other body to carry out its functions.
There is no cause for concern that one party will act in ignorance of what the other is doing in fulfilling their duties in providing for school places for pupils with special needs; or that any information that might be needed by either party in respect of special educational provision cannot be obtained. I therefore suggest that the amendment in the name of the noble Lord, Lord Judd, is not necessary and that the Committee should reject it.
I turn now to Amendments Nos. 204 and 205. We are all agreed about the need to ensure that schools play their part and that school governors must be more accountable in respect of their pupils with special needs. However, I think that the amendments before us are simply not appropriate. I believe our policies will achieve the objectives we all seek.
Clause 153 requires school governors to "use their best endeavours" to secure that special educational provision is made; to ensure that teachers are aware of the importance of identifying and providing for pupils with special needs; and, subject to reasonable conditions, to ensure that the child is included in all school activities alongside other children. That is a powerful duty. It means that governors must do everything that they possibly can to secure the provision. It falls short of the amendments before us
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only in that under the present duty, if governors simply cannot secure the provision, then they are not in breach of a duty if they do not secure it. But of course the LEA has the function to be concerned about provision for the individual child.
If we accepted these amendments, governors would be in breach of their duty to secure provision for pupils with special needs even where the responsibility for that provision might lie elsewhere; as in the case of pupils with statements, for example. Furthermore, the duty in Clause 153 must be considered in the context of the new accountability of governors arising from the code of practice and from the requirement that governors formulate, publish and report on their school's policies towards all their pupils with special needs.
I suggest that the new clause tabled by the noble Lord, Lord Addington, would be misplaced in the context of this new accountability. We have had a fruitful debate on the code of practice. Your Lordships have agreed that the code should cover the school's role towards pupils with special needs. Governors would then take the code's guidance into account when drawing up their school's policies. Schools will be inspected on a four-yearly basis by independent—not LEA—inspectors who will scrutinise the effectiveness of the implementation of their special needs policies.
The noble Baroness posed a question about a unit in school. She was right when she sought advice from the department as to whether a unit of a school going grant-maintained would, if it was a part of the school when it was an LEA-maintained school, remain part of the school as a grant-maintained school. If we are talking about a unit for children with those sorts of special needs, we are mostly talking about children with statements, and what the LEA has responsibility for is the statementing process. If the LEA, for one reason or another, believes it is inappropriate that a child should be placed in a unit in the school then it has control over addressing the particular needs of individual children. Part III of the Bill ensures that the child's interests are paramount. I believe that the provisions under the Bill are realistic. While putting demanding but sensible duties and responsibilities on governors, they also provide for guidance and accountability in exercising those duties.
The amendment would put all of the eggs in the local authority basket. I believe that what we have is a coherent, cohesive framework for dealing with children with special needs, and I ask that the amendment be rejected.
7.30 p.m.
Lord Judd: I am grateful to the Minister for the full way in which she has replied to the points raised. The question that we have to face is whether we see the local authority's role as a kind of academic commentary upon the situation in its area or as one of real responsibility in respect of planning and provision. That is what causes our anxiety.
I greatly respect the noble Lord, Lord Renton, and I always take his interventions seriously. I listened to him. I ask him to look again at the wording. There is

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a difference in emphasis and role between determining the extent of the special educational needs and periodically reviewing a situation. We know that some local authorities have taken their review function, as it stands so far, seriously, bringing in highly professional consultants and producing detailed reports. There was the famous Fish Report on the inner London provision and the Galloway Report on Tower Hamlets. They are good examples, but we know that there are other examples of where local authorities have produced just two or three sides of paper and have said that they have reviewed the situation.
I noticed that during her full and helpful reply the Minister said that the Government did not believe that they should have sole responsibility. That is the repeated problem with the Bill. We see a situation developing in which the LEA has residual moral and other responsibilities but without the power. That is not a tenable or acceptable situation. The amendments are just another dimension of the confusion that is arising. For a government who seem to want to be seen as clear-cut and straightforward and to determine issues without equivocation, going straight to the heart of the matter, I find that they apply a different reality to the local political situation. This is just another example of all that. But having said all that, the position is repeated over and over again in the Bill, and so there would not be much point in pursuing this matter to a Division tonight. Therefore I beg leave to withdraw the amendment.
Amendment, by leave withdrawn.
[Amendments Nos. 198 to 199 not moved.]
Clause 151 agreed to.
7.34 p.m.
Viscount Astor: My Lords, I beg to move that the House do now resume. In moving the Motion, perhaps I may suggest that the Committee stage begins again at 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

National Lottery etc. Bill
Brought from the Commons; read a first time, and to be printed.

Treaty on Open Skies (Privileges and Immunities) Order 1993
7.35 p.m.
Baroness Trumpington Baroness Trumpington rose to move, That the draft order laid before the House on 24th February be approved [22nd Report from the Joint Committee].
The noble Baroness said: My Lords, the purpose of the order is to extend certain privileges and immunities set out in the Vienna Convention on Diplomatic Relations to men and women carrying out observation flights over the United Kingdom under the Treaty on Open Skies.
The collapse of the Iron Curtain has brought remarkable progress in building security and
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confidence between East and West in Europe, and in particular in lessening the risk of surprise attack. Your Lordships will recall that that has been given substance in the CFE (Conventional Armed Forces in Europe) Treaty which is deeply reducing holdings of major conventional weapons systems, the CFEIA Concluding Act which caps military personnel strengths and the 1992 Vienna Document with its basket of confidence and security building measures.
President Eisenhower put forward the notion of an agreement under which states would be able to fly over one another's territories and collect information on their military capabilities and activities as long ago as the 1955 Geneva Summit. It has been the thaw in the cold war however which has seen the idea bear fruit since President Bush renewed the proposal in May 1989.
The Treaty on Open Skies was negotiated by NATO member states and the countries of the former Warsaw Pact and signed on 24th March 1992 in Helsinki between the 16 allies, the five former East European members of the Warsaw Pact and Russia, Ukraine, Belarus and Georgia. Kirgizstan has since become the 26th signatory.
Open skies will enter into force 60 days after at least 20 of the states parties have ratified. The United Kingdom, along with the United States, Russia, Germany, France, Italy, Canada, Ukraine and Turkey, must ratify before the treaty can come into effect. Any of the other Commonwealth of Independent States (CIS) Republics which have not yet joined the treaty can do so at any time. Once the treaty is in force further applications may be considered: for the first six months by any other Conference on Security and Co-operation in Europe (CSCE) state and thereafter by other states irrespective of geographical location, if they are able and willing to contribute to the objectives of open skies. Such applications will require the consent of existing states parties to the treaty.
The treaty will provide a tool which will enhance ability to monitor compliance with and thereby further the objectives of current and future arms control regimes. Open skies may also prove a valuable resource in crisis monitoring and conflict prevention. Open skies therefore both complements and supplements existing arms control agreements. It picks up the threads of military transparency, of openness and of trust with which they are knitted and extends them. The open skies will not be bounded by the Atlantic and Urals but will take in the northern hemisphere from Vancouver to Vladivostock.
The essence of the treaty is confidence and security. Hence its detailed provisions are rigorous yet balanced and equitable. The articles dealing with observation aircraft, flight quotas, conduct of flights, sensors and data exchange are crafted accordingly.
Under the treaty each party has the right to designate one or more aircraft types for use as observation aircraft. To ensure that they comply with the requirements of the treaty and that the sensors carried are those agreed, all such aircraft must first undergo a strict certification examination. An observed state has the right to provide its own choice

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of designated aircraft for a flight over its territory. However, if the observed state chooses to exercise that right, the observing country is able to ensure full compliance with the treaty and proper functioning of the sensors through the presence on board of its own observers.
Every state party to the treaty has agreed a figure, known as its "passive inspection quota", which indicates how many observation flights it commits itself to receive each year. In common with France, Germany and Italy we have agreed to receive up to 12 flights a year from the end of the 36 month "phase in" period. Prior to that parties will receive 75 per cent. of their quota—a maximum of nine flights in the case of the United Kingdom.
Each country's entitlement to conduct observation flights, known as its "active inspection quota", is in principle equal to its passive quota. In other words, each state party can choose how many of its permitted flights it actually uses.
Clearly a key factor in the effectiveness of the open skies treaty in promoting confidence is the ability to conduct observation flights at short notice. Hence only 72 hours' notice of intent to conduct a flight is required. The element of unpredictability is further enhanced by limiting advance warning of the route of the flight to as little as 24 hours.
A particularly significant feature of open skies is that it extends to the entire territory of all states parties. The only restriction to that is that observation flights will not be permitted to approach closer than 10 kilometres to borders with states that are not themselves parties to the treaty. Furthermore, states parties may not restrict observation flights on grounds of national security but only for legitimate flight safety reasons. At all times open skies flights will enjoy precedence over normal air traffic.
Four types of sensors are permitted by the treaty; these are optical and video cameras, infra red line scanners and synthetic aperture radar. The aim is that it should be possible to detect military activity in all weathers, both in daylight and darkness, and to distinguish a tank from a tractor. The data produced, contained on film negatives and magnetic tape, will be shared by the observing and observed states and made available to all other states parties, irrespective of their participation in the mission, upon payment to the observing state. The Open Skies Consultative Commission, which consists of all the signatories and is based in Vienna, is currently working on outstanding technical issues and will, after open skies comes into force, seek to resolve any issues that may arise from its implementation.
The order before your Lordships will enable the United Kingdom to give effect in domestic law to the requirements of the open skies treaty that flight crew, flight monitors and ancillary military personnel engaged on missions are granted certain diplomatic privileges and immunities. It is being made under Section 1(2) of the Arms Control and Disarmament (Privileges and Immunities) Act 1988.
The Treaty on Open Skies is another step along the path of trust, confidence and transparency that leads to a more secure future for us all. I beg to move.
Moved, That the draft order laid before the House on 24th February be approved [22nd Report from the Joint Committee].—(Baroness Trumpington.)
Lord Archer of Sandwell: My Lords, your Lordships will be grateful to the noble Baroness for that very clear exposition. It is not always that I have the good fortune to follow a Government Minister finding myself in complete agreement both with what the Government are seeking to do and with their reasons for doing it.
What the order seeks to achieve falls within an extremely narrow compass. Indeed, the Government would have been very remiss had they not sought to achieve it. I hope that I may add my support for the reasons expounded by the noble Baroness for the Government seeking to facilitate the implementation of the open skies treaty.
On these Benches we welcome the treaty for a number of reasons. First, perhaps I may be permitted a note of self-satisfaction because we in the Labour movement have called for something of this kind from the early 1980s when we repeatedly argued for the need for more confidence-building measures. Some of us can trace back our individual credentials even further. Speaking personally, I cannot go back to the period recalled by the noble Baroness —I do not suppose that she can personally—to the 1950s when this idea was suggested by President Eisenhower, but I can claim to have supported it, wearing my federalist hat, since the mid-1960s.
Therefore, this is a lesson in persistence. We make a proposal when no one wants to know. We are dismissed with the comment that it is all Utopian and that we are not living in the real world. We continue to argue the case when we are thought to be tiresome. We press home the arguments for the unfashionable idea as successive events provide object lessons. And then, one day it happens. Of course, it is tempting to point out that some of those who now take it for granted are relatively late converts. That does not matter. The prophets may have been stoned but their prophecies have been fulfilled. We must now press on with the next unfashionable crusade.
I hope that your Lordships will forgive that excursion into self-indulgence. The second and less narrow reason for welcoming the treaty is that it is a concrete, recognisable product of the CSCE process. Your Lordships may remember—indeed, the noble Baroness recalled it—that one of the major objects of the Helsinki agreement which gave rise to the CSCE process was to initiate a series of confidence-building measures; that is, measures intended to break through the barrier of mutual mistrust between what were then the Eastern and Western blocs. The purpose of that was that it had become obvious that the reason for the arms race was not that either side had anything to fear—no one wanted a war—but that neither side could be sure that if it disarmed, the other side would not seek to take treacherous advantage of that situation.

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Neither side wanted to adopt a threatening stance but neither side could have confidence in the good faith of the other.
What was needed was a series of measures by each side, the very purpose of which was to increase the confidence of the other in its good intentions. If there were other commendable by-products, so much the better. However, the aim was to reverse the deadly cycle of each side increasing its armaments simply because it mistrusted the other; and in the process giving the other side reason in its turn for mistrust and, therefore, causing the other side to behave in exactly the same way, further feeding the cycle of mistrust.
Those mutual confidence-building measures have progressed a long way since that first concept. They now embrace that wide spectrum of mutual co-operation in enhancing civilisation which is now comprised in the CSCE process. But still a very important factor is to ensure that the world does not again descend into the cycle of mistrust which itself leads to the giving of further grounds for mistrust.
If it is said that the open skies regime may not prove to be a very effective method of inspection, let it be clear that its major purpose is as a symbol that each state wishes to believe in the good faith of its neighbours and to demonstrate its own good faith. It is to write the word Mizpah across the textbooks of international relations.
It would be silly to claim that the open skies regime is a substitute for a comprehensive verification regime such as that envisaged, as the noble Baroness reminded us, by the CSCE agreement and the Strategic Arms Reduction Treaty. It does not make any less urgent the need for the existing nuclear powers to renounce further testing before the non-nuclear powers become tired of waiting and, one after another, develop their own nuclear weapons until the world becomes one big nuclear explosion waiting to happen.
It may be hoped that one benefit deriving from the chemical weapons convention will be to demonstrate the feasibility of global monitoring. But that is not to diminish the importance of what is happening. Perhaps I may just express a note of caution and say that one needs to recognise the possible danger. If, with the treaty open for signatures and ratification there is a substantial number of powers seen to be dragging their feet then, far from building confidence, it may serve instead to engender suspicion.
Therefore can the noble Baroness tell us—I do not think she mentioned this; but if she did I missed it—how many countries are currently signatories to the treaty and how Her Majesty's Government are encouraging others to speed up the signatory process? Although the noble Baroness very helpfully expounded on the timetable for ratifications, I wonder whether it is known when the requisite number of ratifications will have been achieved. Perhaps she can also indicate whether there are any proposals to extend a similar regime to other regions. Is there perhaps a prospect of interesting China in a similar process?
The noble Baroness referred to other matters, such as crisis management, which might be subject to a
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similar process. Is there any thinking of extending the open skies principle to other areas of activity—for example, pollution control? I should say at once that I have not given the noble Baroness notice of the last two questions. I shall therefore fully understand if she is not in a position to answer them tonight. But, perhaps at some stage we could be given the answers. Further, now that the international community has accepted the breakthrough and the sky has not fallen in on the world of international diplomacy, have the Government any plans to maintain the momentum?
We on this side of the House support the noble Baroness tonight without reservation. We look forward to further initiatives which we can support no less warmly.
Baroness Trumpington: My Lords, I am extremely grateful to the noble and learned Lord, Lord Archer of Sandwell, for his very warm welcome to the order. I very much appreciate the fact that he gave me prior notice of some of his questions. It was exceedingly good of him to do so because I know how very busy he is at present. This is the first time we have faced each other across the Dispatch Box. Let us hope that in future life will remain as felicitous.
The noble and learned Lord asked first how many countries had signed the Treaty on Open Skies. There are 27 signatories to date. Does the noble and learned Lord wish me to recite the names?
Lord Archer of Sandwell: My Lords, I am grateful to the noble Baroness. In order not to weary the House, I would be content to receive a letter regarding the list.
Baroness Trumpington: My Lords, I shall be delighted. I am also delighted not to have to pronounce all the names. Of the 27 countries, Canada, the Czech Republic, Denmark and Hungary and the Slovak Republic have ratified the treaty as of now. As regards the plans for ratification of the treaty, the passing of the order, and corresponding orders for the Dependent Territories, the Channel Islands and the Isle of Man, is essential for the UK to be able to ratify the treaty. The Dependent Territories order is due in the Privy Council in May. We expect the Channel Islands and the Isle of Man to table their legislation as a matter of high priority.
The treaty comes into force when a minimum of 20 states ratify. They must include all the big players—that is, the UK, the USA, Russia, Ukraine, France, Germany, Italy, Turkey and Canada. The United Kingdom has no control over the speed of the ratification process in other countries, but it is to be hoped that the treaty will be in force by the end of this year.
At present, the only states able to join the treaty that have not done so are Armenia, Azerbaijan, Kazakhstan, Moldova, Tajikistan, Turkmenistan, and Uzbekistan. The Open Skies Consultative Commission which represents all the existing signatories has recently written to those governments encouraging them to do so. Likewise, the United Kingdom has encouraged those states to sign the treaty in our bilateral contacts with them. In the

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longer term, we would welcome applications from any state that demonstrates the ability and willingness to meet the objectives of the treaty in furthering trust and building confidence.
The United Kingdom has been encouraging those members of the 53-nation Conference on Security and Co-operation in Europe (CSCE) that are not currently entitled to sign the treaty to consider applying to do so as soon as it enters into force. The Helsinki CSCE follow-up meeting in July 1992 set up a forum for security co-operation in Vienna, the FSC, and identified 14 areas in the field of arms control, confidence and security building and security enhancement in a programme for immediate action. The FSC convened in September 1992 and continues its mandated work. The target for completion is the 1994 Budapest CSCE summit.
I turn now to the control of pollution to which the noble and learned Lord referred. The use of the treaty for environmental monitoring is one future possibility recognised in the treaty. I am not sure, but I believe that he also asked about China as a passing comment.
Lord Archer of Sandwell: My Lords, yes I did.
Baroness Trumpington: My Lords, China is not currently eligible to join because it is not a NATO or a former Warsaw Pact member—
Lord Archer of Sandwell: My Lords, I trust that the noble Baroness will forgive my further interruption. I asked whether there was any thinking about extending it to other regions and, as an example, suggested China. I am aware that, at present, China cannot join.
Baroness Trumpington: My Lords, we do not know anything about the intentions of the Chinese once the treaty is in force. But it is up to states outside the various bodies to apply. We can do no more than look at their applications. I commend the order to the House.
On Question, Motion agreed to.
The Earl of Strathmore and Kinghorne: My Lords, I beg to move that the House do now adjourn during pleasure until 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.58 to 8.30 p.m.]

Education Bill
House again in Committee.
Lord Judd Lord Judd moved Amendment No. 199ZA:
After Clause 151, insert the following new clause:
("Access audits for children with special educational needs
—(I) A local education authority shall from time to time determine the accessibility to schools for children who have a disability which either prevents or hinders them from making use of educational facilities of a kind generally provided for children in schools within the area of the local education authority.
(2) A local education authority shall keep under review the arrangements made for school premises to be made accessible to children requiring special educational provision within the area of the local education authority.
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(3) The Secretary of State shall issue, and may from time to time revise, guidance to local education authorities on the level of resources which he considers necessary to educate children who have special educational needs in a school which is not a special school and to make school premises accessible to children requiring special educational provision within the area of the local education authority.").
The noble Lord said: In moving this amendment I wish to speak also to Amendments Nos. 199A, 200, 201 and 203. During the debate at the Committee stage in another place, when considering research into special educational needs, there was detailed discussion on the report entitled, Within Reach: Access for Disabled Children to Mainstream Education. That report was jointly commissioned from Coopers & Lybrand by the Spastics Society and the National Union of Teachers. As a result, the Government—I wish to put this matter on record as we appreciate the Government's action—accepted an amendment to the Bill requiring the Secretary of State to secure in particular information and research relating to the provision of education for children with special educational needs.
The Within Reach report concludes that once start-up costs have been met, costs of progressing integration are not particularly high. A crucial recommendation by Coopers & Lybrand in the report was the strong recommendation that,
"the Government encourage and support research into resolving the uncertainties and supplying the missing information. Without coherent data collection and a standardised approach to quantifying existing per capita expenditure on pupils with different levels of special need in both special and mainstream schools, then the extent of existing progress towards the greater integration aim of the 1981 Act cannot be assessed, let alone the cost of progressing further".
That was stated in a report of Coopers & Lybrand.
Our contention is that the requirement for information and access audits of schools is essential to fulfil the Government's own policy of improving integration. During the course of its research, Coopers & Lybrand discovered that LEAs only held the original plans of each school in their area. The Department for Education had no idea, it seems, of the number, size, number of floors and age profile of schools in England and Wales. Therefore, the National Union of Teachers and the Spastics Society commissioned further research.
The report Within Reach is the first ever attempt to investigate the national costs of making schools accessible to pupils with limited mobility. More than 2,500 schools responded to a questionnaire distributed by the NUT to primary and secondary schools in England and Wales. From their replies Coopers & Lybrand found that unconverted Victorian and Edwardian multi-floor buildings were the most common barriers to access. The research was undertaken by Coopers & Lybrand to assist both the Government and local education authorities in obtaining a clearer idea of the resources which will be required to implement their policies for fuller integration of pupils with special needs in mainstream schools.
In accordance with the findings of the first report, the schools' survey, recommendations include a call for government to take action to produce targeted

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plans to ensure that schools are brought up to the accessibility standards detailed in the Within Reach report. The new clause we are putting forward calls for local education authorities to undertake access audits for children with special educational needs. The LEAs should keep under review arrangements to make schools accessible to facilitate progressive integration of pupils with special educational needs into mainstream education. It is crucial that the Secretary of State takes a national view in support of the Government's own policy for fuller integration. National guidance should be issued. There is no excuse for not providing equal educational opportunities for pupils with disabilities.
I have spoken so far on Amendment No. 199ZA. I shall now say a few words on Amendment No. 199A. There is little doubt that the tentative moves in this country towards integration over the past decade are now threatened by new market forces in the education scene. In addition, increased pressures on mainstream schools have in many cases prompted a less tolerant approach by teachers and heads towards the inclusion of those pupils with disabilities or learning difficulties. At the same time the importance of educating all children together has not lessened. The social and human rights reasons underpinning integration remain as strong as they have ever been. I beg to move.
Lord Addington: This group of amendments brings us to the subject of integration. There are several question marks over this subject. Amendment No. 199ZA is a sensible amendment as it suggests access audits to determine what the needs are. My name is added to Amendment No. 201. I believe the gremlins have got into the Marshalled List as I do not believe that my name should have been added to the amendment. When we are considering integration we have to be careful to ensure that individual needs are met. There has been a movement to integrate everyone with special needs into mainstream education as the only way forward. I believe that cannot be right as pupils with special educational needs have many different types of problem.
It is absurd, however, to exclude someone from a school simply because he is in a wheelchair. Ramps should be provided. However, it is questionable whether someone who is badly dyslexic and who has not received the same level of tuition as his peers should be forced to enter a mainstream school. That pupil may feel that he is a failure. We discussed this matter earlier. Such a pupil may have an emotional reaction to such integration. Any child who suffers from a perception learning problem may feel isolated from his fellows and from the learning process in a mainstream school.
I hope the Committee will bear in mind that there are no absolute rules in this matter. There is no blanket rule for everyone. We should not permit any attack on special schools as there will always be certain pupils who require special schools. As teaching techniques develop and staff receive more training in this area, the role of special schools may diminish. If special units are attached to mainstream schools, a very small percentage of pupils may attend special schools. Nevertheless, there will always be a role for
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specialist teaching in special schools. This group of amendments concerns the concept of how far we should take integration. We must always remember that individual needs must be the bottom line of any consideration of this subject.
Baroness Darcy (de Knayth): I welcome the debate on integration. It is essential that we move forward on this matter, although we debated integration on an earlier bunch of amendments. The 1981 Act made integration possible but there was no compulsion to integrate. However, the danger at present is that we might be going backwards with the so-called parental veto on Clause 152(1). At present I am in correspondence with the Minister as I am seeking clarification of the Government's intentions. I hope that I shall eventually obtain a positive response. However, I was quite worried about what the noble Baroness, Lady Blatch, said on Clause 152(1) when she spoke much earlier on a large and disparate group of amendments.
I hope very much that the noble Baroness or the noble Lord, Lord Henley, if he deals with that clause, will agree to meet me and discuss the matter outside the Chamber as it is extremely complicated. I should be grateful for that assurance.
I shall also speak to Amendment No. 201 in my name, which gives the smallest possible nudge towards integration possible. However, I shall speak first to Amendment No. 199A. I shall be as brief as I can, but I have kept quiet all evening because I knew that I would take a little time on this subject.
Amendment No. 199A provides the strongest commitment to integration. It has a great deal to recommend it because it includes a commitment, and without such a commitment I do not believe that we shall make much progress. It refers to planning. That is crucial. I have seen in Hounslow how successful a calm, carefully planned but committed move towards integration can be. I spoke to pupils there who all said how beneficial it had been for them and that the education had stretched them immensely.
The reference to a "compelling" reason provides a let-out so that when an individual child needs a limited period of special provision that can be provided but there is still a commitment to integration.
On the question of integration, I was very struck by the experience of a mother with a disability, who was very much a survivor rather than a beneficiary of the special school system, who came to talk to the All-Party Disablement Group. Her daughter has a similar genetic inherited disability and goes to a mainstream school. The mother told us how deep the segregation had been in her case. She would travel to and from the special school in her special transport, never mixing with able-bodied peers. She lived a parallel existence in a parallel world. That struck me very forcibly.
The lady who is the joint co-ordinator of Parents in Partnership provided another very good description of the position. She said:
"Friendship and a feeling of belonging are as important to a disabled child/young person as it is to an able-bodied youngster. Community is part of life, and they deserve to be part of the whole… When you segregate. you effectively segregate the whole family, you segregate the disabled child

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from their peers, and the rest of the family from the extended family of connections which naturally occur through mainstream education".
The child with a special need needs the model of the "ordinary" child. The latter learns very much from his contemporary with a special need. If they can grow up and laugh and play and fight together they have a far better chance of understanding and co-existing happily than if they are suddenly thrust face to face in uneasy integration into a harsh, competitive adult world.
I shall now move on swiftly and speak briefly to Amendment No. 201. Before doing so I should like to say that I support Amendment No. 203 in the names of my noble friend Lady Warnock and the noble Baroness, Lady Faithfull. It relates to children with statements in special schools. I wonder whether the Government are now collecting figures relating to children without statements in special schools. Figures used to be collected and published, but that stopped. I believe that the figures are again to be published and I should be interested to know whether that is the case.
Amendment No. 201 would ensure that LEAs had regard to the potential benefits which provision for a statemented child might bring to other persons when considering the efficient use of resources. That does not mean only other pupils. It includes teachers, governors and visitors with disability, particularly now that schools are used out of school hours for other activities.
I should like to give an example which has been provided by IPSEA. Perhaps I should declare that I am a director of IPSEA. The example is the case of Lawrence. Lawrence was refused a place in an ordinary secondary school because his LEA claimed that adapting the school to permit him access would not represent "an efficient use of resources". Lawrence is physically disabled and relies on calipers and a wheelchair for mobility. The main adaptation needed to the school was the installation of a stair lift. Lawrence and his mother visited the school, after his refusal, and discovered that there was another boy in a wheelchair already on the school roll. That boy, Ben, was being taught some of the time on his own, in the footwell at the bottom of a staircase. On occasions, Lawrence's mother was told, other students would physically lift Ben up and down stairs. Clearly any adaptations made to admit Lawrence would have brought immediate and equivalent benefit to Ben, in strict accounting terms thus doubling the efficiency of the expenditure on a stair lift. That was an example of another child who was already at the school, not even a potential future pupil, who would benefit.
Therefore, I hope that I shall receive an encouraging reply in respect of this very modest amendment. It is important. If I do not receive a satisfactory reply I may return to the matter at a later stage, although I shall not move this amendment at this stage because it forms part of a huge group of amendments.
8.45 p.m.
Baroness Faithfull: I should like to speak to Amendment No. 203 in my name. The purpose of the amendment is to prevent a child who has neither been assessed nor issued with a statement being placed in a special school unless that school is a hospital school.
The Secretary of State would expect that children in special schools would normally be afforded the protection of a statement. However, it is clear that some LEAs are ignoring that advice. That was highlighted in a recent study by the Centre for Studies on Integration in Education. There are a number of concerns about children placed in a special school without a statement.
Without a statement a child's case is not reviewed, whereas if the child is statemented its case must be reviewed from time to time. Equally, the child's case must be monitored. Some children remain in residential schools when they have so improved that they could return to their homes and ordinary school. Without monitoring they might not return home. We feel that it is very important that it should be clearly understood that every child who is placed in a special school should be statemented.
Baroness Warnock: I very strongly support that amendment.
Baroness Hamwee: As the noble Lord, Lord Judd, said in introducing this group of amendments that there is evidence of head teachers being reluctant to accept into schools children whose needs do not easily fit into the existing pattern of school life, I wonder whether he could comment on whether that is a matter of resources rather than of other difficulties. It is my experience that heads are very open to the needs of children who require special assistance, whether of a physical kind or in the form of additional teaching. However, there is the usual problem of juggling resources and taking a decision when a school's budget is being set as to which of a number of competing priorities will win the day.
Lord Judd: It is perfectly proper that the noble Baroness, Lady Hamwee, has raised that question. There are many dedicated head teachers with a great sense of social commitment who would move heaven and earth to accommodate such people. Unfortunately, they are not everywhere. It is partly a problem of resources but it is also partly another problem of pressure concerning performance, leagues and all the rest, which I do not think we should go into now, although that is a very relevant issue.
Lord Pearson of Rannoch: I should like to speak to Amendment No. 200 which is in my name. The amendment seeks to differentiate between mentally handicapped children and all other children with special educational needs. It seeks to exonerate them from the presumption in favour of educating them in a school for normal children which seems to exist in Clause 152.
My authority, such as it is, for moving the amendment is, first, that I am the father of a 12 year-old girl who suffers from Down's syndrome and,

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secondly, that I recently chaired the Special Education Needs sub-committee of the Teacher Education Committee of the Council for National Academic Awards. In that latter capacity I entered the world of the academic special education needs specialists. I have to say that I found it rather crowded with people who hold lots of well-meaning theories about children with one kind of handicap or another but who were rather short on personal experience in the field upon which they pontificated and upon which they often wielded very great influence.
By "personal experience" I mean actually suffering from a handicap themselves or caring for a relative who did. I was surprised, for instance, to discover that no other member of the sub-committee which I chaired had a mentally handicapped close relative or indeed a close relative with any form of what most of us would regard as a special education need. I was further surprised to learn that the more enthusiastic of the SEN enthusiasts, of which my committee seem to be entirely composed, believed that nearly all children should be regarded as having a special education need at some time in their education. I suppose that this may have been a simple empire-building exercise; but it opened my eyes to the breadth of the possible meaning of the expression, "special education needs".
Be that as it may, nowhere was the lack of real experience to which I have referred more obvious than in the case of the experts dealing with mental handicap. One measure of the depth of this ignorance is that these are largely the sort of people who have decreed that the term "mental handicap" is now somehow unkind or inappropriate. They have instead invented the expression "people with learning disabilities" and woe betide anyone who dares not to use it.
It is of course true that mentally handicapped children and adults suffer from learning disabilities. But their condition goes far wider and deeper than that, and to pretend that it does not by sticking a cosy label on them helps no one or anything except, I suppose, the consciences or perhaps the subconscious of the experts in question.
I must emphasise that I am seeking to exclude only mentally handicapped, statemented children from ordinary schools unless of course their parents actually want them to go there and unless the school in question can really provide the unique care that mentally handicapped children need at school.
I do understand what the Bill and the other amendments which refer to special education needs are trying to do for all other categories of special education needs children, and I am not sufficiently expert in these other areas to comment on them. I confess that I fear there may be an element of wishful thinking even in the attempt to force the pace of integration into ordinary schools of children with other categories of special education need. I suppose I fear this because normal children can be quite cruel and in the present indisciplined state of many of our schools I worry that the disadvantaged will be subject to considerable bullying and unkindness when no one in authority is looking.
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But the Bill itself, together with the amendments tabled by the noble Baroness, Lady David—to whom, together with my noble friend the Minister I wish to add my condolences—and by the noble Baroness, Lady Darcy (de Knayth), the noble Baroness, Lady Warnock, my noble friend Lady Faithfull, and others, all amount to an honourable attempt to integrate the physically handicapped, the dyslexic, those suffering from violent or unusually difficult home backgrounds and others into our normal schools. But most of the children in those categories can keep up with the lessons for normal children, at least mentally. Indeed, they often outshine normal children academically. And, what is more, they can answer the other children back if they are unkindly teased. In short, they can largely hold their own in the playground and they do not hold the other children back in the classroom. We cannot say that of the mentally handicapped.
Having criticised the Bill and the other amendments to it in this category for not seeing that mental handicap should be treated differently from other kinds of special education needs, I hope that it will be helpful if I say where I believe the emphasis should be laid for mentally handicapped children. I am in no doubt at all that many, if not most of them, are at their happiest in a good special school or a sheltered community type of school, one of which my own daughter is lucky enough to attend.
I mention this also because our well intentioned community care policy (for which I appreciate that the Minister is in no way responsible) is beginning to work against such schools. I suppose that this was to be expected because our community care policy is the elder sister of the philosophy which I am criticising here. My own view of our community care policy is that it is fundamentally flawed because there actually is not much of a community where we are forcing the mentally ill and the mentally handicapped to go, and even where there is, I am afraid that it does not care as much as the authors of the policy hoped it might. One result of these two attractive but naive sisters working in tandem is that local authorities are beginning to refuse to fund mentally handicapped children at least in special non-maintained schools, using such irrelevant excuses as that the schools in question do not stick closely enough to the national curriculum.
I suspect that this sort of attitude is also strengthened by the Government's very regrettable and misinformed decision to leave sheltered and village communities off the list of provision which local authorities are encouraged to support.
I know that my noble friend cannot answer for much of this latter point, criticising our community care policy, and indeed I made the point personally to my right honourable friend the Secretary of State for Health only yesterday. But our Departments of Health, Social Security, and Education, and our local education authorities are inevitably intertwined in our policies for the mentally handicapped. I trust therefore that the Committee will not think that I have strayed too far from the specific purposes of the Bill. I am merely trying to show how good intentions towards the mentally handicapped can pave the way to a very

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private hell which only those particularly unfortunate people must travel. I very much hope that the Committee will not force our mentally handicapped children down that road, and that the Committee will therefore feel able to support the amendment.
Lord Glenamara: Perhaps I may—
Baroness Cox: My name is linked with that of the noble Lord, Lord Pearson, on the amendment. I should like to follow him, since it follows logically, in support of what he said. Perhaps I may take this opportunity to say how much I agree with the remarks made by the noble Lord, Lord Addington, in his contribution.
I speak not as a parent of a mentally handicapped child but as a nurse who has had the privilege of caring for many people who are profoundly handicapped. I have also had the privilege of being a patron of Restcare, an organisation established by and for parents with profoundly handicapped children.
Like my noble friend Lord Pearson I make no apology for using the term "mentally handicapped" although I know that it is not at the moment the professionally correct terminology. I do so because the parents of the families in which there are profoundly mentally handicapped children have told me that they prefer that title because it does not confuse the issue. I therefore use that terminology out of deference to their wishes and their concerns.
Of course I respect the principles and policies underlying the theme of integration. I recognise that for many young people integration has been a very good thing. I also recognise that when the noble Baroness, Lady Darcy (de Knayth) speaks about schools for children with special education needs in an earlier era, perhaps much was left to be desired. We have made much progress both in mainstream education in providing for those children and in the schools which still cater for them.
I have two worries about the Bill as presently drafted. That is why I support the amendment in the name of the noble Lord, Lord Pearson. I am worried about the presumption in favour of integration: the presumption that integration is the most appropriate policy for all children with special educational needs. In this amendment our concern is especially for the mentally handicapped.
I am worried that the clause that we are discussing puts an onus on parents to make a special case for their children to be treated specially. They have to make the case for them not to go into mainstream education. Many parents have been subjected to enormous pressure from professional advisers and local education authorities to send their children to mainstream schools. Some of them have succumbed to that pressure against their better instincts and deep knowledge of their own children. Over and above that, it must surely be obvious to anyone that while integration may suit many children with a mental handicap—and I rejoice for them—for others it can be a recipe for unhappiness. Day after day, week after week, month after month they are brought up against the agonising reality that they do not learn as quickly
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as other children. They are brought up against the agonising reality that no matter how much people try to integrate them, they are different. They are disadvantaged. They are in a situation of real unhappiness and isolation.
In the past couple of days I happened to mention this amendment to a teacher in a secondary school in the North of England. The school had a special regional unit for pupils with special educational needs. He described how a pupil with mental handicap had been put in a mainstream class. Because the teacher could not cope, the pupil was repeatedly sent outside the classroom. My friend described how he would find that pupil sitting alone in the library, unhappy and demoralised. That is isolation, not integration, in the concept of mainstream education.
I was speaking to another person who is chairman of governors at a primary school. He described in vivid terms how six of the pupils in that primary school who are all mentally handicapped are subjected to quite frequent bullying. I do not say that that happens everywhere. There are many places in mainstream education—and I respect them wholeheartedly—where pupils with mental handicap are integrated, and they flourish. There are many examples of good practice. But the examples I have given are not atypical; and they are real. The law is there to protect against bad practice. It is there to promote good practice, but it must protect primarily against bad practice. Over and above that, there is the inherent problem that many children with mental handicap may be far happier in a more sheltered and more specialised environment where they are enabled and encouraged to realise their potential with the protection that a special school can afford.
I should like to emphasise that I believe that parents know best. The Government are committed to parental choice. I believe that we should offer a genuine, open, unbiased choice without this preconception, this presumption, that integration is always best and should always be chosen unless there are real reasons against it. I am in favour of integration where appropriate, but I do not think that it should be the main presumption. While it is the main presumption it has repercussions in terms of policies—of promoting funding policies favouring integration against special provision. It also puts great pressures on parents who already have to suffer the tragedy of having a mentally handicapped child. My support for the amendment is based on a belief that the choice for those parents should be open. It should not be prejudiced at the beginning in favour of a presumption that they ought to send their children into mainstream education. That is why I would like the amendment to be supported. It does not build in that presumption and that pressure.
9 p.m.
Lord Glenamara: Earlier in the day I said that I would raise again the question of parental choice. I wish to put a view which is rather different from that of the noble Baroness, Lady Cox. I do not believe that the presumption she talked about is a reality in most local authority areas.

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I have a friend whose daughter has a son with Down's syndrome. I believe that Down's syndrome is one of the saddest disabilities of all. The little boy is four-and-a-half years of age. At present he attends a mainstream nursery school. His parents have avoided the statement process which would be his only passport to assistance, because the only provision would have meant a long daily ride to school in a bus. His parents, like many parents throughout the United Kingdom, I have discovered, want the right of choice between a mainstream school or a special school.
I believe, and I speak as somebody who started life as a teacher, that the educational needs of a child with learning difficulties can be met in any school, provided that the local authority supplies the resources. In the school of which the noble Baroness spoke, the resources were obviously not provided.
Baroness Cox: I did say that one of the schools to which I referred had a special regional unit for pupils with special educational needs, and that was still occurring. So resources were not the issue.
Lord Glenamara: In the case of the boy sitting in the library I am sure that the resources were not provided. Only local authorities have the power to allocate such resources and the power to decide which school a special needs child shall attend. Therefore, parents have no right of choice of school. A child may be sent to a school which they believe to be not at all suitable. That is happening.
The National Down's Syndrome Association finds that its members often have to fight for years against the local authority to find a mainstream placement. I agree that some parents do not want a mainstream placement. Some want a special school. All I am saying is that the choice ought to be there. Most parents do not want their children to mix only with children suffering from the same disability. Those of us who have been teachers know that children often learn far more from each other than they do from their teachers. But if all the children suffer from Down's syndrome they will not learn very much from each other. In the case of that disability, it is a disaster for their speech and development.
Unfortunately, there is nothing at all in Part III of the Bill which will help. There are new appeal tribunals, which I welcome. They are long overdue. There is a right for parents to state a preference for a school, and I welcome that. However, the local authority does not have to grant that preference. More importantly, parents will have no option but to choose a school where the resources have been provided by the local authority. The Bill strengthens the hand of local authorities and their special schools.
I repeat the point I made earlier. Parents are newly granted an absolute right to have their child sent to a special school. I do not know whether the noble Lord, Lord Henley, will reply, but if he reads the clause he will discover that if English words mean anything they carry that meaning. However, there is no corresponding right for a mainstream placement.
The local authority's duty to arrange for a mainstream place continues to be subject to three provisos which are set out in Clause 152(2) (a), (b) and
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(c); namely, that the child's needs can be met there, that the placement will not affect the efficient education of other children, and that it will be an efficient use of resources to send the child there.
With regard to the last of those provisos, while the local authorities continue to pour resources into special schools, it can never be, in the strict sense, financially efficient to integrate in any one child's case. The other two points, (a) and (b), are inevitably interpreted subjectively by the local authority.
Finally, I point out that, alarmingly, new plans come into force next year to hand over financial management to all special schools. The LMS funding formula is based on the number of places available rather than the number of pupils. LEAs are obliged to pay for a fixed number of places. They will therefore have a financial incentive, to say the least, to fill those places. So the situation will get worse. It will become ossified, with the special schools filling the centre of the stage.
I should like to make it absolutely clear that I am not opposed to special schools. At present I am the president of a college that trains disabled people. I followed the noble Baroness, Lady Masham, in the post. She knows very well the college to which I refer. I am very proud of it and I am proud of many special schools. However, the fact remains that for the past few years those involved in education have been trying to persuade parents that integration is the right thing and that is the way to treat their children. They have accepted our point of view. All they want is a choice.
I have deliberately not tabled an amendment on this point but I hope that the noble Baroness—I am sorry that she is not in the Chamber—will think about the matter and before Report stage come up with some measure to help those parents. I am quite prepared to put forward an amendment at that stage but I would much rather that the Government brought forward an amendment to deal with the point.
Baroness Masham of Ilton: I should like to ask the Minister a question about Amendment No. 203 with regard to statements. If a statement will benefit a child, why do some children have statements and other children do not? Is it because the local authorities are overloaded and not able to cope? I should like an answer from the Minister as it is very difficult to make legislation when one is not sure why some children are without statements.
I go along with the comments made by the noble Lord, Lord Glenamara. I believe that choice is needed. Some children do not thrive in a school and if they are unhappy perhaps they should go to a school where they do thrive. I believe that choice gives satisfaction.
Lord Pearson of Rannoch: Before my noble friend answers that question, perhaps I could pick up on three points made by the noble Lord, Lord Glenamara. He said that he was speaking in the light of his experience of the four year-old son of a friend. I must suggest that that is rather different to dealing with a member of his own family whom he may not know so well.

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Secondly, he made it clear that he was speaking for the Down's Syndrome Parents' Association, or that he supported to some extent the views that it was putting forward. Most of the members of the Down's Syndrome Parents' Association favour a normal placement for their children, but they are by no means the majority. I should be very surprised if they comprised even half the number of parents who have a Down's Syndrome child. When one allies that pressure to the pressure that he admitted comes from educationists toward mainstream education for their children, noble Lords will understand the kind of pressure that a parent comes under in order to put his or her child in a mainstream school. That is exactly the pressure that my wife and I suffered in facing that dilemma. I am extremely glad to say that we were mature enough and able to avoid it.
Lord Dormand of Easington: I shall be very brief. I was very moved by the speech made by the noble Lord, Lord Pearson. He was absolutely right to say—though not in these exact words—that there is no substitute for direct experience. He can speak from his personal experience, as some of us cannot. Whatever happens in this or any other Bill, I hope that that will not be forgotten.
This Government and previous governments, urged by a number of noble Lords, have made some kind of provision for consultation. They have put on to various bodies and committees people with, if I may use the expression, second-hand experience—the noble Lord at least will know what I mean by that—so that we get as much benefit as we can from that kind of contribution.
I also hope that the Minister will take very careful note—I am sure that he will—of what his noble friend said in his speech regarding mental handicap. Something more than has been done must be done in that field.
I was also pleased that the noble Baroness, Lady Cox, and my noble friend Lord Glenamara brought up the question of choice. I was one of those who succumbed to the original enthusiasm about integration. Obviously there is much to be said for it, and there is no question about that, but right from the beginning I had certain doubts in my mind because one of the most enjoyable experiences I had as an education officer was to visit our special schools—the warm welcome one received, the things that were said and what one observed. What was particularly noticeable, and this applies to every school, was the enthusiasm of head teachers and teachers in such schools. That is not realised except perhaps by those who have direct experience of them.
I therefore hope that the Government will take some notice of the question of choice. I add only one comment. What a parent decides is not necessarily the best choice for the child. In practice it will mean that parents will at least listen to advice from specialists within the educational service, regardless of the type of school. I make that plea, that the Government place more emphasis on that.
I wish to say only two or three brief words in regard to Amendment No. I 99ZA, moved by my noble friend
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Lord Judd. It is astonishing that in 1993 Parliament is debating the content of this amendment. I recall, as does my noble friend, the Chronically Sick and Disabled Persons Act from our honourable friend Alf Morris in 1970. That was 23 years ago. More recently we had the Act on disability by our honourable friend Tom Clarke. It is astonishing that, after all this time, in education of all fields, an amendment of this kind has to be tabled.
The first worry is that it has to be tabled at all. The second is, why? There are at least two answers, which have perhaps been dealt with. My noble friend said, quite properly, that on the whole headmasters would like to have all the facilities if they can get them. But sometimes they do not think about them—they have so much on their minds and it may not be possible.
The Government might also say that these things are not cheap. That must be considered. Perhaps the Minister will say—and one can understand it—that it is up to the local authority or indeed the head teacher to decide the priorities. I believe one speaker has already said that. That is perfectly understandable. But we say that the time has arrived to change that situation and in those circumstances I hope that the Committee will accept the amendment.
9.15 p.m.
Lord Ponsonby of Shulbrede: I should like to address some comments to Amendment No. 199A in the name of my noble friend Lady David. Before I do so, I will convey to her the sympathies which many Peers have expressed, along with my own.
This has been an extremely interesting and principal debate on the degree of integration. Amendment No. 199A goes perhaps further towards integration than all the other amendments. Perhaps I can quickly mention some figures which show that we are likely to be moving backwards in the integration of children with disabilities into our schools.
Progress with integration since 1983 has been slow. For example, between 1988 and 1991 there was only a 3 per cent. drop in the level of pupils segregated across all English LEAs. When the primary school population was analysed separately it was found that there was a 2 per cent. rise in the placement of that age group in special schools over the same period. That rise is possibly explained by the impact of primary school testing under the national curriculum, which takes up a point made earlier by my noble friend Lord Judd. Mainstream primary schools across the country may be getting rid of their more difficult pupils because they threaten the academic record and ambitions of the school in a rapidly changing market place.
The amendment seeks to place a stronger integration duty on schools. There is a wide variation in the proportion of pupils placed in special schools by different local education authorities. The patchiness of the provision has been found by an Open University report which was found to range between 0.5 per cent. in Barnsley up to about 3 per cent. in Lambeth, Kensington and Chelsea and Hackney.
There have been some emotive terms bandied around in the press in regard to this subject: phrases

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such as "apartheid", which we heard also this evening; "disability cleansing", which is an even more emotive term, and so on. The noble Baroness, Lady Darcy (de Knayth), spoke to Amendment No. 2O1, which is perhaps more acceptable among the pressure groups which make up this special education consortium. The purpose of that amendment is to ensure that in considering the efficient use of resources account is taken of the benefits to other users of school premises arising from changes made for an individual child. It seems to me that that is the consensus of the interest groups in special educational provision.
The debate has veered between the extreme as put forward in Amendment No. 199A and the views as articulated by the noble Lord, Lord Pearson, and the noble Baroness, Lady Cox, who spoke against the presumption that is generally favoured on both sides of the Chamber.
I refer briefly to the amendment of the noble Lord, Lord Pearson. The amendment is a curious one. The 1981 Act requirement that a child with special educational needs should be educated in a mainstream school unless there are overriding conditions is lifted for a child registered under the Mental Health Act. The force of the amendment appears to be that a child registered under that Act will automatically be educated in a special school unless the parents wish otherwise. I wonder whether the mover is seeking a reversal of the 1981 Act policy. If so, I believe that it goes against the whole thrust of cross-party consensus, which is a preference for integration.
Lord Pearson of Rannoch: I do not know whether the noble Lord wishes me to answer that point at this stage. To be honest, I am not sufficiently familiar with the 1981 Act to know exactly what it does in this area. I merely wish to remove the qualified duty to secure the education of children with special educational needs in ordinary schools when those children are mentally handicapped. I am quite happy to leave the rest as it is. I do not want there to be a presumption either way; I want it to be for parents, their advisers and so on to make the decision case by case, child by child. If there is a presumption against what I say in the 1981 Act then I certainly oppose it.
Lord Ponsonby of Shulbrede: I thank the noble Lord for his clarification. I believe there is a great deal of consensus on the point that parents should have a choice. I see that the noble Lord opposite is nodding. I do not wish to argue particularly in favour of the different degrees of the amendments. I totally agree with the point made by the noble Lord, Lord Addington, that the primary concern must be with the individual child, but I also believe that we should bear in mind the possible insulation of able-bodied children from children with disabilities and the benefits and broadening of the minds of able-bodied children if they were to be educated alongside children with disabilities. Although I agree with the preferences expressed by the noble Lord, Lord Addington, I believe that we ought to be cognisant of the whole picture.
9.30 p.m.
Lord Henley: Like the noble Lord, Lord Ponsonby, I believe that there is much more common ground than we have necessarily given ourselves credit for. The Government are committed to the principle that, wherever possible and when it is right for the child, a child with identified special educational needs should be integrated in mainstream provision. However, that is a general principle. It implies that there will be an important continuing role for special schools, even if the number of pupils attending such schools declines slightly as a higher proportion of children with special needs have those needs met in mainstream education.
The other fundamental factors that are relevant in any debate on integration are the statutory assessment procedures through which the child's needs are precisely identified and parental choice. The Committee will know that the measures included in the Bill are designed to streamline the assessment procedures. At the same time the principal thrust of the Bill is to enable parents of children with a statement of SEN to play a more active role in their children's special education and to give greater weight to their wishes. Parents of children with SEN will in future be able to express a preference for a particular maintained school. I would say to the noble Lord, Lord Glenamara, that in this respect the Bill significantly extends parental choice.
Turning to the amendments before us, I start with Amendment No. 199ZA in the name of the noble Lord, Lord Judd. We believe that the amendment is unnecessary. We are, of course, familiar with the Coopers & Lybrand report to which the noble Lord referred and which, I believe, has inspired the amendment. I do not disagree entirely with some of the principles behind the amendment, but I cannot support it. In the first place, the provisions as drafted would allow an LEA's consideration of these matters to extend to grant-maintained and independent schools where the authority's writ does not run. In any event, as I hope I shall show, it is unnecessary.
That said, I would not want to be in any way dismissive of the Coopers & Lybrand report which contains a great deal of very interesting and important material. However, we have no intention of building a raft of prescriptive legislation on the findings of that report, based as it was on only five local authorities. LEAs have been under a duty to promote integration of children with SEN since the 1981 Act became law. There is now, with the imminent introduction of local management of special schools, an ideal opportunity for LEAs to look into the costs of various forms of integration. There is in fact very little in the Coopers & Lybrand report about LMSS. The need to submit variations to published LMS schemes should now be focusing authorities' attention on the comparative cost of the different forms of provision and the desirability of ensuring that a good spectrum of mainstream schools has access for the disabled. We certainly would not be surprised, therefore, if a substantial amount of relevant information becomes available over the next few months.
Another aspect of access for disabled pupils in mainstream schools is the role of the FAS. When the

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FAS has been established, it will be able to encourage grant-maintained schools to apply for capital grants for access for the disabled by inviting schools to bid for works in this area. It will be for the FAS to determine the allocations within the budget as a whole. Moreover, grant-maintained schools' success in bidding for capital grant to aid access for the disabled will not prejudice or pre-empt bids for capital expenditure for other purposes. Grant-maintained schools themselves will therefore have every incentive to apply for such grants. We are convinced that, as in many other spheres of educational practice, grant-maintained schools will lead the way by securing excellent facilities for disabled people. Many schools may consider applying for such capital grants as part of their new duty to formulate and publish individual policies for pupils with special needs. As an increasing number of grant-maintained schools are approved, the FAS will be able to maintain a strategic overview of such provision. Thus, well-planned and cost-effective facilities for the disabled should become increasingly available.
Finally, I should remind the Committee that there is a good base from which LEAs, the FAS and schools can move forward. We have given high priority in recent years to building projects necessary to implement approved statutory proposals. Prominent among these have been projects for integration arising from the closure or reorganisation of special schools. LEAs have spent more than £2 billion on capital expenditure on school buildings between 1986–87 and 1989–90. Much of this will have gone on improving the building stock, including through the provision of better access arrangements for disabled children. We estimate that between 1990–91 and 1993–94 LEAs will have spent a further £2.3 billion on their schools. I therefore urge the noble Lord, when the time comes in due course, not to press his amendment. I believe that it is unnecessary.
Turning to the other amendments, I should like to refer first to Amendment No. 199A in the name of the noble Baroness, Lady David. I should like to echo all the expressions of condolence expressed by the Committee. The noble Lord, Lord Ponsonby, spoke to the amendment, as did others. We believe that the amendment is neither necessary nor, for that matter, desirable. As I believe I have made clear, we believe that parents have a major role to play in deciding what should be done for children with special educational needs.
The Bill itself represents a significant advance. Parents will be involved in considering whether children should be integrated into mainstream education or whether they should attend a special school. However, this amendment removes all reference to the wishes of the parents and as such it is wholly unacceptable. It represents an extreme viewpoint by assuming, in effect, that every child can and should be educated in a mainstream school. I believe that, as has been the general feeling expressed in the debate, that virtually all the Committee will agree that this is manifestly not appropriate.
Lord Ponsonby of Shulbrede: I draw the noble Lord's attention to Section 3(2) where it explicitly makes reference to the child's parents in any consultation.
9.30 p.m.
Lord Henley: My understanding is that although there is that reference, it actually plays down the role of the parents. As I said at the beginning, I believe that there is a great deal of consensus in the Committee on this particular issue, or at least more consensus than the man from Mars might assume on first listening to such a debate, if I may put it in those terms. I believe that the noble Lord himself said that this provision is possibly at one end of the spectrum. We believe that it is too far towards that end of it and not necessarily appropriate. It does play down the role of the child's parents and for that reason we cannot find that particular amendment satisfactory.
I now turn to Amendment No. 200 in the name of my noble friend Lord Pearson. As he explained to the Committee, he has very understandable motives and very good reasons for moving that amendment. I believe that his involvement in these matters is appreciated by the Committee and by all Members of the House. We all know that he speaks about these matters with a great deal of authority and personal interest. We all value his contribution to a debate of this nature.
I hope to be able to reassure my noble friend by saying that Clause 152, as drafted, will already deliver what he is seeking in his amendment as regards all children and not just those who have mental illnesses. Subsection (1) of that clause would not apply in the case of any parent who did not want it to. I am advised that that is the effect of the words,
"unless that is incompatible with the wishes of [the] parent".
So if the duty is not compatible with the parents' wishes, then the parents relieve the LEA of that duty. Therefore, I hope that my noble friend will welcome that clarification. Again, when we reach his particular amendment I trust that he will not feel it necessary to press it.
Lord Peston: I am grateful to the noble Lord for giving way. Perhaps I may ask for clarification. It is very rare, and almost the first time in my experience of the House, that I find the arguments of the noble Lord, Lord Pearson, completely compelling. Can the noble Lord assure the Committee that the wording in the Bill—namely, "unless that is incompatible"—means exactly the same as the words in the amendment of the noble Lord, Lord Pearson, which seem to be much clearer? I refer to the phrase,
"Unless the consent of his parents has been obtained".
As someone who believes that he understands the English language, the words do not mean the same to me. I am willing to accept the statement of the noble Lord, Lord Henley, that he is absolutely certain that they mean the same, but what the noble Lord, Lord Pearson, wants should be the case.
Lord Henley: The noble Lord is quite right to interrupt me on that. I very carefully said that I am advised that that is the case. In the light of the recent

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court case, Pepper v. Hurt which went to the Judicial Committee of the House, it is very important that I know exactly what I am saying from the Dispatch Box. I reassure the noble Lord that that is my understanding. If I am wrong—and there is every opportunity that I am—I shall certainly write to the noble Lord after we have had another look at it. I shall also write to my noble friend Lord Pearson.
I was trying to give an assurance that the wording means exactly that. It is quite important that we get this matter right, but that is my understanding of the meaning of the words. I have forgotten most of the law that I ever knew, but I do not know about the state of the noble Lord's knowledge of the law.
Before I turn to Amendment No. 201, perhaps I may deal with one particular point raised by the noble Baroness whose amendment it is; namely, as regards statistics and whether we are collecting them on the number of children without statements in special schools. This really relates, I suppose, to Amendment No. 203, but the paper just happens to be here. I can assure the noble Baroness that we are, in fact, collecting such statistics on a national basis and we are in contact with several authorities with large numbers of unstatemented children in special schools. We are certainly monitoring the position closely and in due course I hope that we shall be able to provide the noble Baroness with more information.
Turning to her first amendment, Amendment No. 201, I obviously appreciate the motives which have led the noble Baroness to sponsor this amendment and particularly the desire to ensure that authorities consider the case, for example, for improved access for disabled pupils in mainstream schools, when carrying out their qualified duty to secure education of children with special needs in mainstream schools. But again I must regard the text of such an amendment as misconceived and its substance, in fact, as unnecessary.
The Government also have qualms about the necessity for an amendment of this kind. As I think I have made clear, we already have good policies—which have wide acceptance—on the matter of access for disabled pupils. If the noble Baroness will bear with me, I should like to say a little about this. I believe that within any area—but not necessarily a single authority—there should be at least one reasonably accessible maintained mainstream school with good facilities for disabled pupils. However, not every school needs to be equipped in this way; in metropolitan areas with a high population density there may be less need than in rural areas where choice of school is in any event obviously and naturally much more restricted. But bearing in mind the balance between efficient use of resources—I think this is very important—and increasing parental choice, the Government consider that a good proportion of schools should be accessible to such pupils. Measures are in place to ensure that this is occurring and will continue to occur.
Before I move on to Amendment No. 204 in the name of my noble friend Lady Faithfull and the noble Baroness, Lady Warnock, the noble Baroness, Lady Masham, asked me why children have to have
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statements. Children will have statements when the local education authorities decide that they must intervene to arrange the special education that those children need because they need more than their school can provide alone. The code of practice, which my noble friend Lady Blatch dealt with earlier, will ensure a much greater degree of objectivity and consistency in the LEAs' decisions. Turning to my—
Baroness Masham of Ilton: Just to clarify that—what I asked the Minister was why some children had statements and other children did not have statements when the provisions meant that they should have statements.
Lord Henley: If the noble Baroness is dealing with the question which the amendment itself is about (Amendment No. 203), in effect, why are there a number of children in—yes, I have got the right one—these special schools who are unstatemented, I am coming on to that. If the noble Baroness will bear with me, I will address those points.
I thank my noble friend for moving this amendment. I think this is a very important issue. I would certainly not wish her to think that we have not considered this matter carefully—or indeed that it has not been considered in the past. Again, I am sympathetic to some of the general principles behind her amendment, but again I have to say that I do not think that it is necessary and I do not think that it is necessarily appropriate to have such a measure enshrined in primary legislation.
The Government have an expectation that children in special schools should normally have a statement, and this has been made clear in the formal guidance which we have issued on this matter in Circular 22/89, which was quoted by my noble friend, that
"The Secretary of State would expect that children in special schools would normally be afforded the protection of a statement".
In practice, a minority of special school children will be undergoing assessment. This seems to be a reasonable position, assuming that the placement is provisional and has been agreed with parents.
However, it is another matter as to whether special schools should be statutorily prevented from taking any pupil without a statement and who was not undergoing assessment. There are certain, albeit relatively rare, instances when such a placement could be entirely justified. We consider therefore on balance that this is a matter for firm guidance (which could issue within a departmental circular in the wake of the Bill) rather than primary legislation.
The noble Baroness referred to research from the CSIE. We do not believe that the picture is quite as black as has sometimes been painted by that report. We have considered that report carefully, and we are also aware of more recent information from each of the 15 authorities which the report identified as having an unduly high proportion of children without statements in special schools. I am satisfied that in the great majority of cases these authorities have made substantial progress since January 1991 when the data in the CSIE report was collected. In those few authorities where there is still some cause for concern,

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we have asked officials in the department to monitor the position to ascertain just what progress is being made.
I apologise to the Committee for taking up a great deal of time in responding, but these are important points and it is vital that the Committee address them. I end by repeating the spirit of what the noble Lord, Lord Ponsonby, said, and what I opened with at the beginning. There is considerably more agreement in these matters than we necessarily give ourselves credit for. I hope that in that conciliatory tone the noble Lord, Lord Judd, will not feel it necessary to press his amendment, and that the other noble Lords and noble Baronesses with amendments in this group will not feel it necessary to press them when they come up in due time.
Lord Glenamara: Could not the noble Lord give any reply to my plea that the parents who want integration should be given the same absolute right as the parents who want special schools for their children?
Lord Henley: They have a preference, and there is a presumption in favour of that preference. I do not think that one can ever talk about an absolute right in the way that the noble Lord is talking about. We believe that this Bill significantly extends parental rights, but it cannot go as far as the absolute extent that the noble Lord seeks.
Lord Glenamara: I wonder why there is a right in the case of the parents who want a special school and not in the other?
Baroness Faithfull: I must apologise. My noble friend rose before I managed to speak on Amendment No. 203. Many of us have come across parents who have wanted their children to be integrated, wanted them to go to the local school, and been told that they cannot. The amendment that I have put down says that parents must be told why their children cannot go to the local school if the statement is such as to make it clear to the parents that a local school would not meet the needs of their children.
I have had representations from about six parents who have been told that their children cannot go to these mainstream schools, but they have been given no reason why they should not go. Parents are distressed about this because they do not think that it is because of the child's state, and that it has been statemented to go to a special school, but simply because there are not the facilities. This ought to be addressed.
Lord Henley: My noble friend is under a misapprehension. My noble friend is talking about a situation that exists at present. Under the provisions in this Bill, parents would be told, and would have a right of challenge, if what my noble friend said occurred. In other words, if a statement child could not go to a school of their choice.
9.45 p.m.
Lord Judd: I genuinely want to thank the Minister for his sensitive and courteous reply. I do not want in any way to embarrass him, but whenever I hear him speak at the Dispatch Box, I feel that the cause of reasonable pluralistic democracy is not lost, and that it is possible to examine subjects constructively together whatever our differences.
The Minister referred to how the proverbial man from Mars might see the situation here. Whether it was him or the woman from Venus, the conclusion would be that there was a great deal of intellectual meeting of minds on the issue; but what I believe they would find amazing is that after the intellectual meeting of minds, the logical action was not followed through. They would go back and say, "It seems to be a very nice political system they have down there; they talk at great length, late into the night; they find a great deal about which they agree, but they do not actually do anything about it". That is the message that would be taken back to Mars.
I wish to make a couple of practical points. The Minister referred to the evidence upon which the report was based. There is a slight problem because I believe that he has been speaking about the first report by Coopers & Lybrand, commissioned by the Spastics Society and the NUT. I was speaking not just about that report, but about the report published today which takes the matter further. The Minister may not have been briefed about that report. What is interesting is that the evidence has been based on replies by 2,500 schools and not just by local authorities. That is an important point. The other point we must realise is that in today's publication Within Reach (the school survey) we see clearly that the problem is that no one knows how suitable our schools are for disabled children. The information is not available.
The amendment provides that an LEA shall determine accessibility—that is, undertake access audits to provide a local and national picture. It further provides:
"The Secretary of State shall issue … guidance".
That brings me to the point that here again we are up against the issue of whether we are indulging in a genuine moral commitment to the principle of choice, as distinct from ensuring that meaningful choice is available. What has been said from several quarters in the debate is that the condition of so many schools means that choice does not exist. If, therefore, we are to have a free choice, and everyone favours a free choice, there must be a meaningful opportunity to make a choice, in terms of the provision that has been made, not just the intellectual possibility to do so. That is where we remain unconvinced.
It would be helpful if we could have an assurance from the Government that if by any chance Amendment No. 199A is lost the Government will ensure that somewhere in the Bill there is a provision that from 1993 LEAs should begin to plan for integration. That point does not seem to be firmly and clearly established. It is the point that we had on the last debate: we are putting the poor old LEAs into the position of having the moral public responsibility

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without power and effectiveness. Power and effectiveness start with reliable information. All that we are asking for at this juncture is reliable information. The hour is late, as I have said before in our proceedings; I am a realist, and in that sense, I shall not pursue the amendment tonight.
Lord Pearson of Rannoch: I wish to speak to Amendment No. 200, although I do not know whether it is appropriate to do so now. I wish to thank all noble Lords who spoke on the amendment. I thank the noble Lord, Lord Glenamara, for his understanding of what I had to say, and for, if not necessarily his agreement, his acquiescence in the points that I made.
I thank also the noble Lord, Lord Dormand of Easington, for his kind words. We drew swords the other evening over the quality of some LEAs, although I do not think that we actually crossed them. His remarks this evening demonstrate his genuine commitment to the good of all children in our state system of education. I thank the noble Lord, Lord Ponsonby, for his remarks. He mentioned the advantage which normal children receive from association with handicapped children, and of course I accept that. I imagine that it is one of the main themes which underlies the whole integration policy towards the civilisation of our society in the future, and the trend away from locking people up and excluding them; people who are perhaps unpleasant and frightening at first sight. I understand that completely.
It is a question of balance and I think it is wrong if the handicapped suffer from that association. My contention is that the mentally handicapped are more likely to do so under the wording of Clause 152 as presently drafted than is appropriate.
Finally, I have to say that I am really extremely grateful to the noble Lord, Lord Peston, for his intervention. I am afraid that I have to agree with what he said. I think that the wording of Clause 152 as drafted is not acceptable, as the Minister felt, because it clearly says that:
"the child is educated in a school which is not a special school unless that is incompatible with the wishes of his parent".
Incidentally, I do not know why "parent" has suddenly become singular in this part of the Bill and not "parents"—two parents. But that is another matter.
The point is that this really is a hurdle that the parents of a handicapped child have to jump. I had to jump it myself. I know the pressures that come against one from the social workers, who simply cannot understand that you do not want your child in a normal school, and from the Association of Down's Syndrome Parents, which is also rather of that frame of mind. Therefore, I feel that this is an unacceptable expression and I think that my amendment, although it may not be perfect, does create a balance towards the mentally handicapped children at least. I certainly should not dream of testing the opinion of the Committee at this hour of the evening but if my noble friend can come back at the next stage with more of a compromise in that regard, I should be very pleased.
Amendment, by leave, withdrawn.
Clause 152 [Qualified duty to secure education of children with special educational needs in ordinary schools]:
[Amendment Nos. 199A to 201 not moved.]
Baroness Darcy (de Knayth)Baroness Darcy (de Knayth) moved Amendment No. 202:
Page 91, line 35, at end insert:
("(3) Where—

(a) a statement is made under section 159 of this Act, and

(b) the statement names a special school as the type of school in which the child is to be educated

the statement shall specify which of the conditions set out under section 152 cannot be satisfied and why.").
The noble Baroness said: I asked for this amendment to be grouped separately from the previous group of amendments because basically it is not an integration question but rather a question of information to parents. In view of the other remarks made about large groupings, I should say that I have always found the Government Whips' Office extremely helpful about the grouping of amendments.
An LEA has a duty to integrate a child with special needs unless certain conditions cannot be fulfilled. That is still the case under the new Bill. In order for parents to be able to appeal against an LEA's decision that conditions permitting integration cannot be met in the case of their child, they need to know which conditions cannot be met and why. Without that information, it is extremely difficult for them to prepare a challenge to the LEA's decision.
The Audit Commission/HMI report Getting in on the Act revealed that many parents who are seeking an integrated placement for their child are being denied one. Sometimes parents are told that proper provision cannot be made in a mainstream school or that to make such provision available would not represent an efficient use of resources. Sometimes parents are given no explanation. For example, Vincent's mother was told by the LEA that her son could not be integrated because his needs could not be provided for in a mainstream school. It emerged later, however, that no school had been approached as part of Vincent's assessment. In fact, the LEA had taken an early decision that whatever school Vincent attended, the LEA would need to provide full-time welfare support for him. But no mainstream school was approached and given that information before being asked whether it could accommodate Vincent and provide for his special needs. The only school which was approached was not told of the provision to be made by the LEA under Vincent's statement, so, not unnaturally, it decided to say that it could not meet his needs.
This amendment would require LEAs to set out on the statement which conditions permitting integration it considers cannot be met in an individual child's case and give the reasons why. That would help parents to decide whether they should or should not appeal against the LEA's decision. Moreover, if they do decide to appeal, it will let them know exactly what it is that they are appealing against. I should like to emphasise that this is not a challenge to the power of the LEA to make a decision as to whether the conditions permitting integration can be met; the

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amendment simply requires LEAs to be explicit about the reasoning behind their decision on the point. I beg to move.
Lord Addington: I should briefly like to express my support for the amendment. As information is required by everyone to make a logical decision, it would seem that LEAs should not be excluded.
Lord Henley: In moving the amendment, I suspect that the noble Baroness spoke about the state of affairs at present. I must stress that the Bill takes us somewhat further. I also suspect that her amendment wants to make LEAs justify on the face of a child's statement their decision to specify a special school. LEAs would not be similarly required to justify naming an ordinary school.
The Government, on the other hand, believe that LEAs should always discuss with parents all aspects of a statement. Those discussions should include the name of the appropriate school, be it a special school or an ordinary school. We are confident, too, that the Bill makes full provision to that effect. I hope the Baroness—I am sure that she will not wish to press it—will feel able to withdraw the amendment.
Obviously, the LEA must explain its decisions to parents. Indeed, parents should have been closely involved throughout the process of assessing the child and drafting the statement. We have already issued clear advice to that effect. Circular 22/89 says:
"The relations between professional advisors and parents during the process of assessment are of crucial importance. Parents should be encouraged to feel that they are partners in this process".
Further guidance issued under the Bill will very much underline the importance of that partnership.
Beyond that, the Bill gives parents an important new right —to state a preference for their child's school. The statement will go to parents in draft form. They will have explicit rights to make representations to the LEA and to hold meetings with the LEA. There will, therefore, be ample opportunity for parents and the authority to discuss the name of the school which should appear on the statement. When parents state a preference, LEAs will be bound to abide by that preference so long as certain reasonable conditions are met.
Our measures provide for full parental participation in the process of making an assessment, writing a statement and naming a school. There must be a full exchange of views between parents and authorities. The tribunal will stand behind that process: if the parent is dissatisfied, the tribunal will consider both sides of the argument. I hope, therefore, that the noble Baroness will feel able to withdraw the amendment.
Baroness Darcy (de Knayth): I should like, first, to thank the noble Lord, Lord Addington, for his support and the Minister for his full reply. I shall read carefully what the Minister said and think about the matter. I am not sure that he has totally reassured me. I may return to the matter at a later stage or I may have a word with the Minister. But, for the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Faithfull Baroness Faithfull had given notice of her intention to move Amendment No. 203:
Page 91, line 35, at end insert:
("(3) No child shall be placed in a school which is a special school unless—

(a) that school is a hospital school, or

(b) the local education authority maintains a statement under section 159 of this Act naming this type of school; or

(c) the local education authority has initiated an assessment of his special educational needs under section 158(3) of this Act and has the written consent of the child's parents to placement in a special school.").

The noble Baroness said: I have already spoken to this amendment. I do not propose to move it.
[Amendment No. 203 not moved.]
Clause 152 agreed to.
Clause 153 [Duties of governing body etc. in relation to pupils with special educational needs at ordinary schools]:
[Amendments Nos. 204 and 205 not moved.]
Baroness Faithfull Baroness Faithfull moved Amendment No. 206:
Page 92, line 26, after ("needs;") insert ("and shall in particular include information as to the admissions policy of the school on children under the age of five where such children are admitted to the school;").
The noble Baroness said: The purpose of the amendment is to ensure that the admissions policy for under fives at a primary school is published as part of the school's policy for pupils with special educational needs. Admission to nursery provision may be crucial in the assessment and in the help given to young children under five with special educational needs.
Many primary schools, understandably, give priority to children in their own nursery class when it comes to admission to the reception class. That is entirely desirable in terms of continuity for the individual child. However, it means that any policy on admission to nursery provision will also have a knock-on effect on the school's admissions policy and practice for the reception class for rising fives.
It is therefore important that in publishing the school's policy on special educational needs (which we understand from the announcement made by the Minister, Mr. Forth, in another place on January 7th will include the school's admissions policy) the school is required to set out in addition any admissions policy relating to nursery provision at that particular school. Mr. Forth said:
"I am therefore proposing to seek an amendment to the Education Bill which would put a statutory duty on each school to draw up, publish and report on its policy towards all its pupils who have special educational needs. This requirement would strengthen the existing safeguards within the Bill, particularly Clause 144 which requires governors 'to use their best endeavours' to meet pupils' special needs. This policy will make all schools more accountable to parents and Inspectors will have regard to schools' SEN policies and their effectiveness when judging schools' performance. It will be of direct benefit to all pupils with special needs".
I beg to move.
Lord Judd: We on these Benches applaud this amendment and fully support it.
10 p.m.
The Earl of Swinton: It only happens once in a blue moon that one lands lucky in this Chamber. Tonight I feel as though I have backed a 33 to one winner because I find my Amendment No. 226 grouped with this amendment. In the normal state of affairs I would have had to wait until some even more unearthly hour to speak to my amendment but I have been given a chance to speak to it now. I do not believe my Amendment No. 226 has anything on earth to do with the amendment of my noble friend Lady Faithfull. However, I do not wish to lose the opportunity of having a go at it now.
I welcome very much Clause 165 whereby parents of under-two-year-olds can agree to have their children assessed and then statemented. That is an excellent provision. However, Clause 161, which gives a right of appeal to parents who disagree with statements, does not cover the position of the under-two-year-olds. My amendment would bring those children into line with the other children and give them the same right of appeal.
Members of the Committee may well feel there can be no question of educating under-two-year-olds and that I must be talking about a health provision. In fact that is not the case. My noble friend Lord Pearson spoke on this issue in the previous debate. I am assured that children with Down's syndrome can benefit greatly from early education at the age of about 18 months onwards. They benefit from education conducted through water and sound methods. That form of education enables those children to improve enormously in their early years. If a child under two receives a statement, that statement will continue long after the child's second birthday and may have a potential influence on the rest of that child's education. Therefore, it is only right that parents of children under two years who disagree with the statement should have the same right of appeal as parents of older children.
Lord Addington: I support the amendment of the noble Baroness, Lady Faithfull.
Lord Swinfen: I strongly support both these amendments. It is well known that it is beneficial to children who do not have special needs to start education as early as possible. I believe it is even more beneficial to children with special needs to start education as early as possible.
Lord Henley: I am grateful that my noble friend Lord Swinton is grateful that these two amendments have been grouped. I can give him no particular explanation as to why they were or were not grouped, and I appreciate they are on slightly distinct subjects. But if it makes life easier for my noble friend, I am sure he will be happy.
I start with the amendment in the name of my noble friend Lady Faithfull and the noble Baroness, Lady Warnock. It calls for schools' annual reports to contain information on their admission policies for children under five where such children are admitted to the schools concerned.
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The Bill already makes the important provision that the annual reports of all maintained schools should include a report about the implementation of the governing bodies' policy for children with special educational needs. The annual report will therefore provide a significant body of information from which parents and others with interest in this matter will benefit. We shall make regulations which will govern the issues which schools' SEN policies must address. We have in mind such matters as the number of children with special educational needs and their age range, any particular specialisms offered, staffing provision and expertise, in-service training policy and links to other schools and specialist help. We shall ensure that schools with provision for children under five will report annually to parents on their policies for those children. We shall expect schools with provision for the under fives to have clear policies for identifying, assessing, teaching and monitoring the progress of all children under five who have or may have special educational needs.
We also need to consider the information available to parents before their child gains admission to a school. Section 8 of the 1980 Act sets out a full regime requiring prospectuses to be produced by or on behalf of the schools. It is clearly sensible practice for such prospectuses to discuss provision for children under five where that provision exists. I am not aware of any widespread absence of such information. We must, however, remember that, apart from provision for children with statements of special educational needs, provision for the under fives is discretionary.
Earlier this year the department consulted widely on the information which should, by law, be included in schools' prospectuses and annual reports. Among the issues discussed in that consultation was the question of schools' admission policies. We shall be making the relevant regulations next month. It would be sensible if, in the light of this debate and that consultation, we were to consider further the question of whether schools which make provision for the under fives should in their prospectuses state their admissions policies for those children. In doing so, we should have to bear in mind that the full statutory regime governing admissions does not and cannot apply to children under five. Nonetheless, I believe that the question is one which merits further consideration. I undertake to give it that consideration.
I turn now to the amendment in the name of my noble friend Lord Swinton. I have to say that it seems inappropriate. While under the Bill, as under the Education Act 1981, children under two can be assessed and statemented, the process of assessing and statementing the under twos may be different from that which applies to children aged two and over. We believe that the issuing of statements for such children is rightly a discretionary matter. The formal rights of appeal relate specifically to the assessing and statementing processes for children aged two and over.
We believe that it is essential to retain a degree of flexibility so far as concerns children under two. To insist on applying the same educational assessment

539
and statementing procedures to children under two as apply to older children, with all the attendant appeals procedures, would in the Government's view be inappropriate. We do, however, consider it important that the conduct of assessments and the making of statements should meet the same standards as apply to the statutory processes. I hope, therefore, that my noble friend will accept that explanation as to why I do not believe that his amendment is appropriate.
I hope that with the assurance that I have given to my noble friend Lady Faithfull she will feel able to withdraw her amendment.
Baroness Faithfull: I thank my noble friend for his reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 153 agreed to.
[Amendment No. 206ZA not moved.]
Clause 154 [Provision of SEN assistance]:
Baroness Blatch Baroness Blatch moved Amendment No. 206A:
Page 92, line 32, leave out from ("assisting") to first ("in") in line 33 and insert:
("( ) the governing bodies of county, voluntary or grant-maintained schools").
The noble Baroness said: Amendments Nos. 206A and 207A are grouped with Amendments Nos. 207 and 208. In speaking to my amendments I shall also address those latter amendments.
The amendments I have put before the Committee are technical amendments. Amendment No. 206A reflects the fact that the governing bodies of maintained and grant-maintained special schools do not fall under the duty in Clause 153(1) (a). Clause 172 defines special schools, including maintained and grant-maintained special schools, as being schools specially organised to make special educational provision. It is therefore not necessary to make governing bodies of such schools subject to the duty in Clause 153(1) (a).
However, as I have said, we recognise that the governing bodies of maintained and grant-maintained special schools may wish to use the services supplied by LEAs to mainstream maintained and self-governing grant-maintained schools. Therefore, Amendment No. 207A would enable local authorities to supply such services to them. I therefore ask the Committee to accept the amendments. I beg to move.
Lord Judd: I seek one point of clarification from the Minister. The amendment does not broaden the clause far enough to include independent special schools; but perhaps I have that wrong. Thus, if a local authority reaches the margin of its capacity for the purposes of the Local Authorities (Goods and Services) Act 1970, it would be allowed to continue trading with grant-maintained schools under the provision but would have to cease any trading activities in respect of independent special schools. Will the Minister reassure us?
Baroness Blatch: I am subject to correction, but my understanding is that a local authority will not be able to trade with schools beyond its own area of influence,
540
and certainly not with independent schools. I believe that I am right. If I am wrong, I shall return to it or write to the noble Lord.
On Question, amendment agreed to.
Baroness Warnock Baroness Warnock moved Amendment No. 207:
Page 92, line 34, after ("153(1) (a)") insert ("and (c)").
The noble Baroness said: The amendment is intended simply to extend the possibility of a service being provided with regard to teacher training. Schools might wish to avail themselves of any training which was specifically designed to inform and enlighten teachers in mainstream schools about the general needs of children with special need. It is not a radical amendment but it might be useful in certain circumstances. I beg to move.
Lord Judd: We strongly support the amendment.
Baroness Blatch: Perhaps the noble Baroness will accept that I address Amendments Nos. 207 and 208 in my response.
Clause 154 provides for local education authorities to supply goods and services to governing bodies so that, if a pupil has special educational needs, the special education provision which his learning difficulty calls for can be secured. We recognise and endorse the importance of identification and appropriate provision for special needs. As the code of practice will say, appropriate provision cannot be made unless special educational needs are identified, preferably as early as possible, and the child's needs are properly assessed.
I very much doubt whether local authorities could provide services in relation to Clause 154(1) (c), which deals with teachers' awareness of the importance of identification and provision for children with special educational needs, that they could not also provide under Clause 154(1) (a), which deals with governors using their best endeavours in making provision for such children. As I said, identification is a necessary preliminary to provision. I therefore believe the amendment to be unnecessary.
I cannot endorse Amendment No. 208. It seeks to place local authorities under a new duty to ensure the availability of special educational need support services. I do not believe that such a duty is necessary or appropriate. Local education authorities must, and indeed will, maintain support services, or retain access to such services, to allow them to fulfil their duty towards children who require or may require statements. Staff employed in those services will be available to all maintained schools in the area to work with pupils with statements and those without. But it would be up to schools to decide whether they wish to retain access to those services to assist them or whether they wish to secure services from an alternative source—a voluntary body, for example, such as the Royal National Institute for the Blind.
If they are to abide by the code of practice, schools will need to use support services. But they will not always need to use the local authority support services. If the LEA was obliged to provide support services in all cases, that would discourage the growth of alternative suppliers. It cannot be the noble

541
Baroness's intention to stifle the choice available to governing bodies. Therefore, I hope that the amendment will not be pressed.
Baroness Warnock: That seems an extraordinarily wasteful reply in that there will be a great need for increased teacher training—a factor hardly mentioned in the Bill—if all the benefits for children with special needs are to result. I refer particularly to what is generally known as a whole school policy, without which it is impossible for children with special needs in mainstream schools to obtain a proper education. That requires a great deal of education of teachers.
It defeats me to see why, if the local education authority sets up that kind of arrangement, it should not be possible to supply the use of such arrangements for the governors of grant-maintained schools. I simply fail to understand that. Perhaps I have just not grasped the difficulty. At any rate, I do not think the point is worth pursuing any further. If I have completely misunderstood, perhaps the Minister will be kind enough to put me right. In the meantime, I withdraw the amendment.
Amendment, by leave, withdrawn.
10.15 p.m.
Baroness Blatch Baroness Blatch moved Amendment No. 207A:
Page 92, line 35, after ("Act") insert ("or
( ) the governing bodies of maintained or grant-maintained special schools in their or any other area in the performance of the governing bodies' duties").
On Question, amendment agreed to.
[Amendment No. 208 not moved.]
Clause 154, as amended, agreed to.
Clause 155 [Special educational provision otherwise than in schools]:
Lord Northbourne Lord Northbourne moved Amendment No. 208A:
Page 92, line 46, leave out ("may") and insert ("shall").
The noble Lord said: This small amendment arises from the fact that Clause 155 provides for local authorities to look after children outside school who cannot be looked after in school. It simply says that the local authority "may" arrange for provision. My view is that if the local authority "may", the implication is that the local authority also "may not", and that would seem to be totally unacceptable. Unless the duty is mandatory, what will happen is that if the local authority is strapped for money it will cut back on its optional expenditure. That is what they always do and what in practice they are doing at this time. I know of two children who, for one reason or another, cannot go to school who are receiving only two hours a week of out-of-school tuition. I think that is the sort of pattern which will emerge. I beg to move.
Baroness Young: As Amendments Nos. 209 and 210 are grouped with this amendment, I should like to mention them on behalf of my noble friend. Lord Elton.
Lord Ponsonby of Shulbrede: Perhaps I may speak briefly to the two amendments in the name of the noble Lord, Lord Elton, Amendments Nos. 209 and 210. They seem to ensure that pupils who are placed
542
in units or who receive tuition at their home as specified in their statement are returned to schools as soon as possible.
For example, a pupil might be excluded from the mainstream school or special school and have a statement, or a pupil might be between schools and under full assessment. The amendments of the noble Lord, Lord Elton, seem to ensure that LEAs are pressed to find provision which offers a balanced and broadly based curriculum as soon as possible. This seems to me to be a positive amendment. It seems to stop children, especially children with emotional and behavioural difficulties, falling through the net. On this side of the Chamber we are happy to support the amendments.
Lord Addington: I rise to speak very briefly in support of these amendments. This seems a very reasonable and sensible suggestion.
Baroness Blatch: As I flagged earlier today, we have tabled amendments for debate next week as a result of which local education authorities will have a duty to provide education otherwise for pupils who are out of school for whatever reason. Clause 155 has a relation to those amendments. But it must also be seen in the context of Part III as a whole. In particular. it must be seen in the context of the rights that Part III accords to parents of children with statements.
Thus, if a local education authority were to conclude that, for a child with a statement, education otherwise than at school would be appropriate, that local education authority must state that fact in the child's statement and arrange the provision. However, the local education authority's conclusion is subject to appeal. In certain circumstances, the special educational needs tribunal, following an appeal from the child's parents, could order the local education authority to amend the statement and provide education in school. Had Clause 155 imposed a duty on local authorities, the local education authority in question would have been faced with two conflicting duties: to educate the child otherwise and to abide by the determination of the special needs tribunal that the child should be educated in school. We believe that the determination of the special needs tribunal should take priority. After all, it is the tribunal that has heard the case from all sides. I hope that the noble Lord, Lord Northbourne, will appreciate that Clause 155 is cast in permissive terms and therefore will not press his amendment.
I believe it is relevant to refer to Amendments Nos. 209 and 210 in the name of my noble friend Lord Elton and spoken to by my noble friend Lady Young. The concern here and the concern of the noble Lord, Lord Ponsonby, is about reintegration, which is a very important aspect of education. Education otherwise guidance is separate from the code of practice: but the education otherwise guidance will embody the principle that children should return at the earliest opportunity to a mainstream school.
Lord Northbourne: I believe that I heard the noble Baroness say that there are other amendments coming up which will provide for the mandatory education of

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those children, if that is what the appeal committee decides. On those grounds I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 209 and 210 not moved.]
Clause 155 agreed to.
Clause 156 agreed to.
Clause 157 [General duty of local education authority towards children for whom they are responsible]:
Baroness Blatch Baroness Blatch moved Amendment No. 210A:
Page 93, line 22, leave out ("under this Part of this Act").
The noble Baroness said: This amendment is linked with Amendments Nos. 211, 212, 213 and 214. I shall speak to those amendments tabled in my name.
Clause 157 defines the general duty on local education authorities towards those children for whom they are responsible. It is an important clause as it is the bedrock of the subsequent duties to assess and, where necessary, determine the special education provision to meet a child's special educational needs.
The Bill currently requires local education authorities to use only their powers under Part III of the Bill to identify the children for whom they are responsible who require a statement of special educational needs. We recognise, however, that there are other powers, elsewhere in the Bill and in existing legislation which local authorities might need to use if they are to be certain to identify all such children. For example, Clause 146(4) of the Bill gives local authorities the power to seek information from self-governing grant-maintained schools and maintained schools about children for whom they are responsible, placing duties on the governing bodies to provide that information. Similarly the 1986 Act enables local authorities to seek information from the governing bodies of local authority maintained schools.
I have therefore tabled this amendment in order to enable local authorities to use any such other powers as they have in order to fulfil their responsibilities towards children with special educational needs who may require a statement. I believe that the Committee will welcome this amendment as it gives teeth to the authority's use of all its powers to identify those children with special educational needs who might need the authority's intervention.
Amendments Nos. 213 and 214 would extend the duty to identify all pupils who live in the local authority's area, who are being educated at the state's expense, wherever they may be, and who require statements of special educational needs. It would apply whether the pupil was in a school maintained by that authority or by another authority, a grant-maintained school or a grant-maintained special school within and beyond the authority's boundaries or a non-maintained or independent school when that placement was funded by either the local authority or the funding agency.
All parents now have a greater choice of school for their child. The amendments before the Committee are designed to ensure that the authority has an
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unqualified responsibility to identify all pupils who require statements when they are in maintained schools and placed in non-maintained and independent schools by the funding agency or the local authority. I believe that that is a sensible safeguard to ensure that no child slips through the net. Local authorities have a range of means in the Bill and elsewhere to help them fulfil their duty to identify the pupils who may need a statement. We have debated the clauses which underpin the exchange of information between the funding agency and the local authority, notably Clauses 6 and 18. Governors of grant-maintained schools also have a duty under Clause 146 to give information to any LEA in respect of a pupil towards whom the LEA has a responsibility.
I commend these amendments to the Committee. I beg to move.
Lord Judd: In so far as Amendment No. 210A makes it explicit that the naming of a grant-maintained special school in a statement makes it obligatory for the governors to admit the child to the school, we find that unexceptionable. But I hope the noble Baroness will forgive me for raising again a slight niggle. We believe that there remains a lack of clarity regarding occasions when "grant-maintained school" is a generic term which includes grant-maintained special schools and when it is assumed to exclude them. It would be helpful if the Minister could clarify that point.
Baroness Blatch: First, we do not yet have grant-maintained special schools. I look forward to the noble Lord's support for the notion that we should have them. I understand that grant-maintained schools do not subsume grant-maintained special schools. As I said, special schools are likely to be occupied mostly by children already with statements.
Lord Jenkin of Roding: I should like to put a question to my noble friend. Amendment No. 214, with the new substitute paragraph (b), refers to schools which are not maintained, grant-maintained or grant-maintained special schools. It is a question of assessment. If there is an obligation on the local authority to assess pupils who are in the independent sector, is it right that there is no obligation to continue the education of the children in that independent sector? It is a simple question of assessment.
There are amendments tabled to a later clause, to which I hope to speak, which will make the position absolutely clear. However, it may be helpful, in setting the context for that later debate, if my noble friend can explain what precisely is the ambit of her Amendment No. 214 and how far it extends in imposing duties on local authorities in relation to the non-maintained sector.
Lord Northbourne: Perhaps I can expand on that question and ask the noble Baroness what happens in regard to a child who is not at school at all. Sometimes, particularly in the case of children with special needs, there may be a situation where a mother has kept the child at home and not sent him to school.
Baroness Blatch: My understanding is that the responsibility is to the child. Amendment No. 214 includes children among those people for whom the LEA was responsible. Therefore, it includes the children for whom the LEA was responsible who were in a school that was not a maintained, grant-maintained or grant-maintained special school at the expense of the LEA or the funding agency.
Lord Swinfen: Grouped with Amendment No. 210A is Amendment No. 212 and perhaps I may say a word on that. However, the noble Lord, Lord Redesdale, whose name is attached to the amendment, may wish to speak first.
Lord Redesdale: I thank the noble Lord. I should like to speak to Amendment No. 212, having worked in a voluntary capacity at a special education school for children afflicted with hearing disabilities. It is important that the child's needs are taken into account, as the amendment suggests. The Minister may think it is labouring the point, but it is important to include it in the Bill.
Lord Swinfen: I should like to follow the noble Lord, Lord Redesdale, also in connection with children who are deaf. I have been briefed on the matter by Deaf Accord. The emphasis put on ascertaining the wishes of the child in the Children Act, as the Committee will know, was widely welcomed. Deaf Accord was particularly pleased that the guidance to the Act stressed the need to provide communication support if the child was deaf and his first or preferred language was sign language.
Deaf Accord believes that it is essential that deaf children are encouraged to take an active part in educational decisions that will have such a far-reaching effect on their lives. There may be instances where the wishes of the child and its parents, over the preferred method of communication or the choice of a residential placement, are in conflict. We believe that the wishes of the older child should be taken into account in such cases.
Many local education authorities are beginning to incorporate the principles of good practice enshrined in the Children Act. This amendment is necessary to ensure that the two pieces of important legislation relating to children do not have differing views with regard to taking into account their wishes and feelings.
10.30 p.m.
Baroness Blatch: Perhaps I may ask whether anyone wishes to speak to Amendment No.211 or whether it has been withdrawn.
Baroness Warnock: I wish to speak to Amendment No.211. I should like to make one final appeal for clarity, which is the point of the amendment. The amendment proposes that the clause should read:
"(2) This subsection applies to a child if—(a) he has special educational needs or (b) he has special educational needs and it is necessary for the authority to determine the special educational provision …"
The long-winded phrase in paragraph (b) has come to be referred to as a statement. I wanted to explore whether the local education authority had a duty to ascertain the needs of children, whether those children
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had statements or were definitely going to have them or whether they had special educational needs and did not have statements. I know that this subject has come up again and again but I still find myself unclear about the extent to which local authorities are to be responsible for children with special needs who are in a grant-maintained, voluntary aided or any kind of school, excluding a local authority school.
It could be argued that the wording of the clause is such that the local authority is shown to be responsible because there may be children who are brought to its attention as probably having special educational needs. But it seems to me that that is a rather backhanded way to ensure that the local education authority has responsibility for children with special needs who have been assessed and identified but who in no circumstances should have a statement. Though we have touched on this today, I still believe that there is confusion in people's minds about the nature of the provision for these children, who have been referred to as forming approximately 18 per cent. but who in many schools a far higher proportion—more like 50 per cent. or 60 per cent. We are unclear what is to be the responsibility of local authorities in regard to those children.
We have heard today from the Minister a good deal about what will be in the code of practice regarding the stages of assessment of children with special needs. As I understand it, a lot of local authorities are already using the old-fashioned stages of assessment as they appear in the 1978 report as a way of trying to quantify the provision that those children require. As we learn from the report of the Audit Commission last year, at the moment there is extreme vagueness about how to identify children with special needs who do not have statements and how much extra provision they will need. If we leave the matter unclear, as I believe it still is, we will have missed an enormous opportunity in the Bill to make certain that the majority of children with special educational needs do not, and should not, have statements.
The only reason for the increase in the number of statements in certain local authorities and for the overall increase in the number of statements is that parents, and sometimes schools, feel that to have a statement is the only way that any extra resources will go with the child. Therefore, parents press for statements, and we have the whole apparatus of these extremely expensive new tribunals to settle disputes. It runs between school, local authority and parents who want either a statement if there is not one, or more provision than the statement specifies. The reason that this has arisen is that there is not enough money to provide for all the needs of children. We know that that will be the case forever. Why should there be a bottomless porkbarrel of money? I entirely agree that this is likely to remain a difficulty.
I wish to refer back very briefly to the 1978 report where we quite specifically said that the children who had statements would be a small minority. We were thinking of children who had complex and often multiple disadvantages and for whom any given local authority or area might not be able to provide within their ordinary resources, whether special schools or

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mainstream schools. We also sought to ensure that if the parents of those children had to move into another authority, they would go armed with their statement which would say what special provision was necessary for these extremely severely disabled children. It is undoubtedly the case that far more children than we envisaged are getting statements—as I say, simply so that parents, and sometimes schools, can feel that they have a way of screwing more money and more provision out of the local authority.
This has given rise to what is, in my view, the most disastrous aspect of special education. I refer to the gulf that has arisen between children with statements and those without them. It is all to easy to think that if a child is in a mainstream school and does not have a statement he is perfectly okay and does not need much else to be provided for him. I put down the amendment to get clarification. If a child is brought to the attention of the local authority, having come to the attention of the school first, and apparently has a special need, the child must be assessed within the school. What I want to know is whether the local authority is or is not involved in the provision that ought to be made for the child once he has been identified and assessed.
This is largely a question of finance. There will be endless disputes unless we can make it clear in the Bill who is responsible for the extra provision that the child may need. I know that in the Bill we have the possibility of the local education authority providing extra in the way of, for example, speech therapy and other non-teaching services or extra teachers, possibly peripatetic or support teachers, who will go into the school. But is it the responsibility of the local authority to see that that provision is taken up? That is less than clear.
Going with such a responsibility, if it existed, would also be the responsibility for ensuring that the needs of the child were being met in the grant-maintained school, monitoring the actual provision that was there and ensuring that the arrangement worked. But, we are told, the writ of the local authority does not run in the grant-maintained schools, and therefore it has no right of entry and no way of monitoring what is going on in the school. I know that what seems like hours ago I had one bash at getting this question cleared up. This is my terminal bash, so to speak. I hope that I shall not have to come back to it. I believe that not only are Members of the Committee unclear about where the responsibilities of the local education authorities begin and end but that they themselves are desperately unclear about it and need to know whether or not they may take responsibility for the education of children with special needs, the vast majority of whom will be in mainstream schools of one kind or another.
The problem has not become really acute because of the comparatively small number of grant-maintained schools. But if what the Government want actually takes place and the majority of schools become grant maintained, where does the responsibility of the local education authority for children with special education needs end or indeed begin? Will it
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really have responsibility only for those children who are issued with statements? If so, that should be only about 2 per cent. of the school population. Is that really the role that the local education authorities are supposed to have in the future? If so, we should know that absolutely clearly. I would regard that as not quite the death knell but pretty well the death throes of the local education authority. Again, if the local education authority is being surreptitiously condemned to death, we ought to know that because we would know what the problems were.
I regard this kind of fog about where the responsibilities of the funding authority as against the local education authority begin and end as disastrous for the schools. They cannot function properly; they cannot make forward plans; and they cannot budget for their special needs children so long as this fog remains surrounding the issue.
Baroness Blatch: I find what the noble Baroness has just said quite depressing. We have spent a large part of today setting out clearly and in great detail stages 1, 2 and 3 and how they affect every single school in the grant-maintained and in the LEA-maintained sector. I pointed out how the responsibility for statementing remained with the LEA and how the system would work. As far as we could see, there was no lacuna in the system at all. The LEA can require information from the grant-maintained schools and the funding agency can require information the other way.
I find it disappointing. There is a great deal of anecdotal evidence being used. But we are talking about the old system and not the new one as we expect it to work. I have spelt out that the system allows for early identification. As one works through stages 1, 2 and 3 that will become easier and more exposed to practice. I have talked about the way in which every school, whether grant-maintained or local authority, will be required to publish a policy for special needs. That will have to be conveyed to the wider world and to the parents. I pointed out how it would have to be inspected once every four years and the effectiveness of the implementation of that policy.
I can confirm in perhaps a slightly clearer answer to my noble friend Lord Jenkin of Roding, who was concerned about where responsibility lay as far as the LEA was concerned, that Clause 157 defines children for whom the local authorities are responsible and whose special needs they must identify. Local authorities have an unqualified responsibility to identify children who require statements if those children live in the local authority's area and are educated in any maintained or independent school at the expense of the local authority or the funding authority.
The responsibility to identify other pupils—for example, those in the independent sector but maintained at the parents' or someone else's expense—continues with the local authority, but it is a qualified one. It would be important for the LEA's attention to be drawn to the needs of a particular child who is being educated at somebody else's expense.
I refer now to the point raised by the noble Lord, Lord Northbourne, when he asked, "What about the

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other children who are outside the system somewhere else - either walking the streets, in the subways or whatever?". The local authority would have a responsibility there. However, at stages 1, 2 and 3, where we are taking about the 18 per cent., there is a highly structured system, which is highly transparent. That would be school-based in an LEA-maintained or grant-maintained school.
Amendment No. 211 would require local authorities to identify all pupils who have some special educational needs, and not just those who need a statement. I believe that it would be a serious mistake to put such a duty on the local authority and provide no benefit to the pupils in the schools. The authority would be called upon to identify all pupils with special educational needs—that is, around one-fifth of the school population as the research by the committee charged by the noble Baroness, Lady Warnock, suggested—although, as she said, it is a good deal higher than that in some schools.
I do not believe that this compilation of information by the local authority is the best way forward. It is bureaucratic and not practical. We have debated the code of practice at some length and agreed that it should be extended to cover the school's role in identifying special needs. I have outlined the staged amendment model which we envisage the code adapting. School governors will have to have regard to the codes. They will both be accountable for the exercise of their responsibilities to identify pupils with special needs and have guidance on the exercise of those responsibilities. We have strengthened and enhanced the system for pupils with special needs but who do not require a statement without adding to local government bureaucracy. The Bill and the code will assign responsibility to the appropriate bodies—to schools in the real majority of cases and to LEAs in the minority of cases where statements are necessary. This amendment would assign responsibility to the local authority while leaving power with the schools. While designed with the best intentions to add coherence to the system, I believe that it is the amendment which would sow confusion—not what I have spelt out.
I turn now to Amendment No. 212. This Bill includes many provisions to ensure that parents will play a more active role in making choices regarding their children's education. However, we have also long exhorted local authorities to take into account the wishes of the child when carrying out their duties in respect of his or her special educational needs. Circular 22/89, which we issued jointly with the Department of Health, states that:
"The feelings and perceptions of the child concerned should be taken into account, and older children and young persons should be able to share in discussions on their needs and any proposed provision".
Where a child's age and understanding make it possible, his attitude to the choice of school—be it special or ordinary—will also be a very relevant consideration for the authority when determining a suitable school placement.
I do not think we disagree over the importance of considering the ascertainable wishes of the child within the assessment and statementing processes.
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But, like many other important matters to be considered within those processes, primary legislation is not necessarily the place to include the relevant provisions. I can assure your Lordships that in our code of practice—this is about the nth time I have said this—which will guide LEAs over all aspects of the assessment and statementing process we shall be covering the place of the child's wishes in those processes. Local authorities will have to have regard to that code. I therefore ask that the amendments be withdrawn.
10.45 p.m.
Baroness Warnock: As I have said before, I am very grateful to learn that the assessment procedure will be formalised to a certain extent - or at any rate used again in assessing the needs of children, most of whom will not end up with statements. Nevertheless, I am not wholly reassured because, although grant-maintained schools are bound by the Act to publish a statement of the arrangements that they are making for special educational provisions, they are not answerable to the local authority for the statements but to the parents. That is absolutely plain.
The local authority has no right to monitor anything to do with what we might call the general special needs provision in the school as opposed to the needs of those children who have statements. That has become absolutely clear. The governors of the grant-maintained schools must use their best endeavours to ensure that all pupils in their schools with special educational needs have their needs met. But they are not answerable to the LEA, they are answerable to the parental pressure that they may be under to make sure that they do what they have promised for the children.
It does not seem to me that the parents are always the best judges of whether or not good provision is being made for their child in accordance with what was promised. There is a great lack here if there are no local authority advisers or expertise to which the grant-maintained schools are answerable to ensure that they are delivering what they have promised. I think I have the clarity that I asked for. I see where the responsibilities of the local education authority lie, and I see the way in which they will be diminished, but I am equally depressed by the clarity that I have achieved.
Baroness Blatch: The noble Baroness is not giving enough credence to the fact that the policy will have to be drawn up, reported, and made public. Every four years the school will be inspected against the effectiveness of that policy. Each individual family will be involved with the progress of that child. There will be compulsory reporting to parents every year, annual meetings and reports. There is a great deal of transparency.
In addition, the local authority will have the power, and will initially be given the resources, to provide the support services both to grant-maintained schools and to its own schools, and it is inconceivable that there will not be contact between a school that has children with special needs, and a grant-maintained school

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with children with special needs, with the local authority to purchase, or to be provided with, support services. It is up to the local authority whether it wishes to push the money down to the schools, and the schools make the choice, or the local authority holds back the money and makes the provision.
It is bound by law in this Bill to give equal treatment in terms of providing support services for special needs children both to grant-maintained schools and its own schools. There is a great deal of transparency in the system. There has previously not been in place a structure for children's needs at stages I, 2 and 3 in the way that there will be in every single school in the land, and subject to inspection. In addition, local authorities can require information about children with special needs in grant-maintained schools and from the FAS, and the FAS is required to give that information, as are the schools. The code of practice bites on all the agents in the process.
Baroness Warnock: I realise that there is a great improvement in that until now there has been no structured approach to the needs of children who do not have statements. I agree with that, and I am grateful. As to the way in which the relationship between the funding agency, the local authority and the governors of the school works, I should like to believe it; but I fully understand what is intended now, which previously I did not.
On Question, amendment agreed to.
[Amendments Nos. 211 and 212 not moved.]
Baroness Blatch Baroness Blatch moved Amendments Nos. 213 and 214:
Page 93, line 33, leave out from second ("a") to end of line 34 and insert ("maintained, grant-maintained or grant-maintained special school").
Page 93, line 35, leave out paragraph (b) and insert:
("( ) education is provided for him at a school which is not a maintained, grant-maintained or grant-maintained special school at the expense of the authority or the funding authority").
On Question, amendments agreed to.
Clause 157, as amended, agreed to.
Clause 158 [Assessment of educational needs]:
[Amendment No. 215 not moved.]
Clause 158 agreed to.
Schedule 8 [Making of assessments under section 158]:
[Amendments Nos. 216 and 217 not moved.]
Schedule 8 agreed to.
Clause 159 [Statement of special educational needs]:
[Amendment No. 218 had been withdrawn from the Marshalled List.]
Lord Judd Lord Judd moved Amendment No. 218A:
Page 95, line 5, at end insert:
("having made appropriate arrangements for translation and interpreting if the child being assessed, or his parents, has English as a second language and").
The noble Lord said: I am disturbed to discover that the Commission for Racial Equality has assembled evidence which shows that the assessment of children with special educational needs and the involvement of their parents in that assessment sometimes takes place without appropriate translation
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and interpreting. That has evidently led to children being mis-assessed in a number of ways and to their parents playing no part in the assessment. As I understand it, that could constitute unlawful direct racial discrimination against children and parents.
The Commission for Racial Equality is currently undertaking a formal investigation into the arrangements made by one major education authority for the assessment of special educational needs of children with English as a second language. The commission's grounds for believing that unlawful racial discrimination may be occurring there is research undertaken by the authority's own educational pyschologist indicating under-representation of children from ethnic minorities in the moderate and specific learning difficulty category and over-representation in the severe and profound learning difficulty category.
There is reason to believe that may have been caused by the lack of interpreting and translation. Such malpractice could become widespread. The amendment is designed to put an end to it. It will ensure that all children be assessed in their own language, and that their parents are involved on the same basis. I beg to move.
Baroness Blatch: I entirely agree with the noble Lord that parents who do not have English as a first language should participate just as fully in the assessment and statementing process in respect of their children as parents who have English as their first language. Our commitment to improving access to the system for parents is absolute. To that end, issues such as interpretation and translation are important; but we believe they should be addressed in the guidance and not in primary legislation.
We have discussed extensively the code of practice which will embrace national criteria and practical guidance for local authorities when discharging the functions proposed under Part III. We shall be consulting extensively on that code, and we shall cover the point that the noble Lord has just raised.
Lord Judd: If I have one assessment of the Minister, it is that when her resolve is certain, nothing will deter her. In view of the unqualified way in which she has made her statement this evening, I tremble for all those who cross her path. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments No. 218B and 219 not moved.]
The Duke of Norfolk The Duke of Norfolk moved Amendment No. 220:
Page 95, line 20, at end insert:
("( ) in so specifying as described in subsection (4) above, the local education authority shall take careful account of any parental request that the child's needs be met in an appropriate denominational institution.").
The noble Duke said: Since the passing of the Education Act 1981, which Part III replaces almost in its entirety, Catholic parents of a child who has been statemented and subsequently recommended as being in need of special school provision has no statutory right to demand that consideration be given to placing the child in a Catholic special school which could cater for the particular disability suffered by the child. The only concession we were able to ring out of the then

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unwilling DES was that a space be provided on the model statement upon which the child's religious affiliation could be inserted.
There are presently 17 Catholic grant-maintained schools, catering for the special needs of some 1,200 pupils. Pupils are sent to those schools by the relevant maintaining LEA. Some of those schools enjoy the continued support of a number of LEAs. However, as the authorities become even more strapped for money, there is an increasing reluctance, now apparent, to meet the denominational preference of the kind which this amendment seeks to place on the face of the Bill.
We believe that by giving due weight to such preference, we are seeking to extend genuine choice and diversity. I beg to move.
11 p.m.
Lord Judd: I assure the noble Duke that on these Benches, we warmly support the amendment.
Lord Northbourne: In supporting the amendment, I should point out that 16 of the 17 Catholic schools are residential. Where suitable local provision cannot be made for a child so that he must attend a residential school, it is especially important for him to have the familiarity and support of the religious background to which he is accustomed. Therefore, there is a great deal to be said for the amendment.
The Earl of Stockton: In speaking in support of my noble friend's amendment, I refer particularly to Amendments Nos. 222A, 222B, 222C, 222D, 233A and 235A.
On Second Reading, I alerted the Minister to the anomaly which existed in the Bill as regards non grant-maintained special schools. A number of noble Lords were kind enough to support me in pointing out to the Government that they are unwittingly discriminating against the pupils and parents of many such schools. I drew attention in particular to Lord Mayor Treloar's College near Andover which enjoys the support of many of the livery companies of the City of London.
I was worried, even as late as Tuesday of this week, that the point had either been missed or ignored by my noble friend Lady Blatch, an anxiety that was shared by my noble friends Lady Faithfull and Lady Young, the noble Baronesses, Lady Warnock and Lady David, and the noble Lord, Lord Addington, all of whom have tabled amendments seeking to deal with that anomaly. It was therefore with some pleasure that I saw on the latest Marshalled List the amendments tabled au dernier cri by my noble friend on arrival at the Chamber earlier today.
However, I am concerned that the wording of Amendments Nos. 222AA, 222BA and 222CAB do not make specific mention of independent schools, merely grant-maintained and grant-maintained special schools. My amendments seek to include all schools that are not grant maintained. The risk remains that local education authorities will see the national obligations towards the grant-maintained sector as a method of offloading their costs, despite the wishes of the parents and pupils to stay in that non grant-maintained sector.
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Whether my pleasure, not to say joy, will be unconfined depends on what the Minister says in reply to the debate on this group of amendments. I shall listen extremely carefully to what she says but will, no doubt, have to read her reply in Hansard because such is the mastery of her brief and the speed and authority with which she conveys it to the Committee that I for one sometimes find the sheer torrent of information which she bestows upon us more than my poor brain can encompass at the time.
I understand that that is in part due to the necessity to have all the details of the Government's argument in the written record of the proceedings of your Lordships' House in case they have to be cited by lawyers at some future unspecified time. I hope that that ruling of your Lordships' legal committee will not remain unaltered. Surely all that should be of interest to the lawyers is what is in the Bill when it finally passes into law. If subsequent interpretation of the law depends upon a gloss that may or may not be put on the letter of the law by what is said by Ministers in this Chamber or in another place, in my view the authors of the Bill, and indeed Parliament, can be said to be failing in their duty to include everything on the face of the Bill that makes an Act comprehensible to the public and to those whose duty it is to implement the law. That practice, which dogs the proceedings of both Houses of Congress in the United States, has profound and, I think, undesirable implications for this House and the other place. However, having said that, I hope that my noble friend and her apparent conversion to our cause, albeit in extremis, will deliver the goods.
Lord Jenkin of Roding: I should like to speak to Amendments Nos. 222CA, 222CB, 222DA and 226ZA tabled in the name of my noble friend Lady Young. She has asked me to extend her apologies to the Committee because she has had to leave. Knowing that I was going to support the amendments, my noble friend has asked me to speak to them. I also have authority from the noble Baroness, Lady Fisher, who had similarly hoped to speak to the amendments to say that they have her support. I think that that in a sense represents support from both sides of the Committee.
The Bill apparently purports to give the parents of children with special educational needs the right to state a preference for the school at which they wish their child to be educated. But, as the Bill is presently drafted, that preference seems to be confined to maintained or grant-maintained schools. The matter was raised in another place where my noble friend's colleague, Mr. Forth, acknowledged that,
"some parents may feel strongly that their child should he placed outside the maintained sector in, for example, a non-maintained special school".
However, he declined to accept an amendment to reflect that preference and emphasised that under the Bill parents may "make representations" to the local authority about the school.
I chair an organisation—well, it is not really an organisation: it is a loose committee of the 10 leading voluntary organisations for the blind. We call ourselves the Visual Handicap Group. A number of

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those organisations are concerned with either supporting or running independent schools for the blind and the visually handicapped. In fact, out of the 21 special schools that exist in this country for visually handicapped people, more than half—that is, 11—are not maintained.
I should like to mention just a few of those schools. There is Dorton House school in Sevenoaks. I am on the council of the Guide Dogs for the Blind Association. We have made a substantial grant to that school because we think that that may produce some more guide dog owners. There is also Henshaw's School in Harrogate which is very well known, St. Vincent's School in Liverpool and the West of England School in Exeter which enjoys a considerable reputation throughout the west of England. Of course, there are a number of others; for example, the noble Baroness, Lady Fisher, is connected to the Birmingham Royal Institution For the Blind. There is also the Catholic Blind Institute, the Royal National College for the Blind, the Royal London Society for the Blind and so on.
The Committee may indeed be surprised to realise that more than half of those special schools for the blind are not actually covered in this part of the Bill; indeed, there does not seem to be any machinery whereby a parent can exercise his or her preference for the child to go to one of those schools. To exclude those schools from parental preference seems to me to be the most drastic reduction of choice. I honestly cannot believe that that is what the Government intended.
It cannot be right to place on parents, who may already be facing considerable problems and stress with their child's condition, the onus of having themselves to make representations to a local education authority within a 15-day hearing. That is what is allowed under the Bill. One can well imagine how less articulate parents without specialised knowledge would find it impossible to press their case with local authority officials. Their difficulties would be compounded if they wished to take the final step of formally appealing against an LEA decision.
These schools are long-established centres of excellence in the education and care of blind children. Indeed I think it is right to say that without exception they have set the standards, have led the way and have provided the touchstone and the bench-mark by which schools in the maintained sector judge themselves. It seems to me that the legislation as it is at present drafted erects a barrier at the school gates which the children will find it hard to scale and behind which the schools may wither.
I have been told that this sector of the education world for the blind is desperately anxious now about its future. Anxieties are felt by parents, staff and governors at a change which they cannot understand and which they feel threatens their future. It cannot be the Government's intention to jeopardise the service which these schools have given to the community—some of them for more than 150 years. Like my noble friend Lord Stockton, I saw the amendment which my noble friend Lady Blatch had tabled and at first I
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thought, "Ah, she has met the case". But of course she has not done so. There is nothing in the amendment about non-maintained schools; it merely slightly extends the definition to make it quite clear that it covers both grant-maintained mainstream schools and grant-maintained special schools.
I am at a loss to understand what this is about. Many of these schools find that perhaps 85 per cent. plus of their revenue already comes from the public sector in that the pupils are paid for by local authorities. Parents, voluntary organisations, trusts and organisations such as the one providing guide dogs provide substantial sums of money to make up the difference. Why cannot the Bill give parents the right to express a preference in this matter? That is what these amendments are about. I hope my noble friend will give me an answer which my honourable friends in another place seemed to be unable to extract from the junior Minister there.
Lord Swinfen: I wish to follow the powerful speech of the noble Lord, Lord Jenkin of Roding. I am speaking particularly to Amendments Nos. 221 and 222. I wish to speak about blind and partially sighted children, but let us not forget the deaf, deaf-blind and those children with other special educational needs. As my noble friends Lord Jenkin and Lord Stockton have said, we are discussing mainly voluntary schools which were started by charities a long time ago. They are leaders in their own fields. They are not just maintaining current standards but extending them and improving the education that they can provide for children who need special education services the whole time. I could go on for hours, but it is late and I shall not do so. I hope that my noble friend on the Front Bench will take note of what has been said and will come back with more sensible amendments at the next stage of the Bill.
Lord Pearson of Rannoch: I wonder whether I also could support the amendments of my noble friend the Duke of Norfolk, the noble Lord, Lord Northbourne, and my noble friend Lord Stockton. I would remind my noble friend the Minister that she said earlier this evening that the truly excellent non-maintained special schools, whether denominational or not, are very largely supported by local education authorities.
I must say that my noble friend Lord Stockton may have put his finger on a rather delicate spot when he said that the Bill as drafted may encourage local education authorities in future to direct special educational needs children to their own special schools or even grant-maintained special schools to the detriment of non-maintained special schools. It is not even as though these schools are more expensive than the maintained special schools and the future grant-maintained special schools. Generally speaking, they are not. In the case of the schools I know well, the Camphill Community Schools, I believe they are in fact very much cheaper than what is on offer elsewhere. So I, too, join other Members of the Committee in hoping that my noble friend can have another look at this issue before the next stage of the Bill.
11.15 p.m.
Baroness Faithfull: It would seem ungracious of me to ask a question in relation to my amendment, Amendment No. 220C, when it was fully debated with Amendment No. 193AC. However, I should like to support other speakers, because schools for emotionally disturbed children are independent and run by charities. In her reply in relation to the earlier amendment my noble friend said that money for children to go to those schools was dependent on the market concept, and the schools must market themselves so well that the local authorities would want to use them.
I am concerned about that, for the same reasons as my noble friend. Local authorities may want to use those schools, but what is the position if they do not have the money to use them? The schools will have to close, in which case a great resource would be lost to the country. My noble friend generously said that there was to be consultation on the whole issue. Will this aspect be taken into account?
Lastly, if a child is statemented and sent to one of these schools, must the local authority then pay, or is it able to say that it cannot afford to pay?
Baroness Masham of Ilton: I, too, should like to support this group of amendments. While I was listening to Members of the Committee I was reminded of a convent school near Chelmsford which my daughter attended. A very difficult child from London was sent there. She had been badly abused by her parents. She had run away from several schools and the local authority was in desperation. That was the only school which managed to give her security and help that emotionally damaged child over her problems. Therefore, I hope that the Minister will think very carefully and accept the amendments.
Lord Ponsonby of Shulbrede: The Committee knows that we on this side of the Chamber have a presumption in favour of the local education authorities. We had that debate earlier in the day. Having said that, there is a logical extension to the Government's philosophy being put forward from the Back Benches opposite. I would say from these Benches that the point has already been made that many local education authorities place children in such independent schools.
I should like tentatively to advance two possible arguments against the amendments. One is that the balance may be skewed in favour of one particular form of preference, namely, the special school. We have already heard that parents have a right under the Bill to express a preference. The second possible argument is that there may be a temptation for some unprincipled lobbyist to advertise special schools to parents who are in a particularly vulnerable position.
In advancing those arguments I recognise that on this side of the Chamber we have a preference for the local education authority. I understand the logic of the argument being put forward by the Back Benches opposite. I shall be interested to hear the Minister's response.
Lord Addington: Amendments Nos. 221 and 222 are concerned with extending the choice of school. I am not sure whether the amendments in the name of the noble Baroness cover the same points as we are trying to address, but I shall be very interested to hear the Minister's reply.
The Lord Bishop of Guildford: Just in case the Minister is in any doubt about the wide consensus in support of the amendments I should like to make it clear that the amendments have my fullest support.
Baroness Blatch: Perhaps I may first make some general points. It is certainly not the intention to jeopardise those schools. As my noble friend Lord Jenkin of Roding said, the majority of young people accommodated by these schools come from referrals from the local authority; and money follows the child.
Perhaps I may answer the specific question of my noble friend Lady Faithfull. If one of the schools is named in a statement and a child is sent to one of those establishments, there is no question as to who pays the bill. The local authority pays the bill. If it has blessed the statement and named a specific school in the statement, then the local authority must provide. The local authority will have to make judgments about the comparable provision that is consistent with the statement in its own authority. Those are difficult judgments that a local authority has to make.
There have been references to the market. I followed up my earlier remarks with a personal recollection of the meetings I had with my noble friend Lady Faithfull and representatives from the non-maintained special school sector. Like my noble friend Lord Pearson, I believe that that sector often offers not just good value for money but better value for money than local authorities. In the past, we have not had sufficiently clear information about the unitary costs of local authority provision. We are now beginning to obtain that information, and judgments on relative value-for-money factors can be made. That is an important factor too.
I note that almost every Member of the Committee who has spoken against my proposals is from my own Benches. Wholly uncharacteristically, the only person to whom I can look for support in the debate is the noble Lord, Lord Ponsonby. I am beginning to be worried about that. I have not had a sleepless night in some nights; my head hits the pillow and I sleep. I might find it more difficult tonight. However, there is a fine distinction between making a representation and stating a preference. I wish to attempt to explain that because I believe it is important.
Local authorities will be entirely free to make a choice across the whole range of schools including the independent sector, non-maintained special schools, grant-maintained special schools, grant-maintained schools and local authority schools. But I wish to place on record too the Government's regard for the high quality of specialised provision offered by many non-maintained special schools and other institutions outside the maintained sector. Non-maintained special schools represent the valuable and longstanding contribution of voluntary organisations to the field of special education. They and many

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independent schools approved by the Secretary of State offer high quality provision which is often cost effective. Their role is all the more valuable in that they bring diversity to the education system and offer choice to local authorities and parents. I am confident that under the Bill their position will be safeguarded. As long as they continue to provide good education at a reasonable cost they ought to be secure in the future.
The Government's proposals in the Bill will enhance provision for children with special educational needs. We are improving the system as a whole, building on the 1980 Act and the 1981 Act. I do not wish to repeat them—I have been repetitious today on many points—but I covered some of the Bill's most significant elements. I would ask noble Lords, if they do not mind, to re-read some of those statements in Hansard.
However, we should not mistake the very important advance which those provisions represent. They mean that there will be measures in place which will restrain the demand for statements because children's needs will be identified and met at the earliest possible stage in the school. They will mean that when a statement is made it will be clear what provision is needed. It should then be clear which schools can properly make that provision - which is a child's entitlement. If a non-maintained school or an independent school can best meet the child's needs at reasonable cost, then the school should be named in the statement. If it is not, parents may appeal and the tribunal may direct the local authority to name a non-maintained or an independent school; and the local authority would be obliged to pay.
I am worried that in their wholly admirable concern to ensure the best possible deal for children with special educational needs and their parents, some Members of the Committee—in particular all my noble friends—in pressing for a right for parents to state a preference for a non-maintained or independent school will jeopardise the system that we are putting in place.
I am particularly anxious that if parents of children with statements—and only of course parents of children with statements have a right to choose a school in the independent sector—and if LEAs are obliged to accede to that choice when certain conditions are met, there will be enormous pressure on local authorities to make statements. That is human nature. But it turns the new system on its head. It places emphasis on the statement when we wish to place emphasis on the role of the mainstream school; it places emphasis on the non-maintained or independent school the child may. eventually attend when the first consideration should be to identify his or her needs; and I am afraid it places emphasis on conflict when we wish to place emphasis on partnership.
In short the amendments before us would stoke up pressure all round. There would be: pressure from parents for statements; pressure from non-maintained and independent schools on the local authorities to send children to those schools; pressure from parents on local authorities to name non-maintained and
560
independent schools; and, as a result, I fear, pressure on the tribunal to deal with a large number of appeals cases.
I would point out that this also is an area on which the code of practice will provide clear guidance. The Bill carries forward from the 1981 Act the statutory duty on local authorities to arrange appropriate provision for children who have a statement of special educational needs. The school which a local authority names in a statement must meet certain criteria; namely, the suitability of the placement to the special educational needs of the child; the provision of efficient education for the other children in the school; and the efficient use of resources. The code will give guidance as to how those conditions must be met. On that basis there is no reason at all why a local authority should not continue to name independent and non-maintained special schools in statements; and no reason at all why parents should not make representations for that, too. Furthermore, Clause 179 makes clear that a local authority is responsible for paying the fees, and the board and lodging where necessary, where a non-maintained special school or independent school is named in a statement.
We are establishing a system which protects all children with special needs, gives new rights to parents and allows non-maintained and independent schools to play an important role. We are widening parental choice. We are giving parents rights to make representations in favour of non-maintained and independent schools. We are obliging local authorities to consider those representations. But we do not wish to boost the demand for statements, increase the scope for conflict or overload the special needs tribunal. In short, we believe we have the balance right. I hope that noble Lords will not feel that it is necessary to press these amendments.
Lord Northbourne: Before the noble Baroness sits down, if she is appealing to the market principle, then surely there ought to be a level playing field as between the independent sector and the maintained sector. If parents are allowed—as I believe I am right in saying they are—in Schedule 9 only to state a preference for a maintained school, we do not have a level playing field.
Baroness Blatch: As I said at the outset, there is a fine distinction between preference and making representations. There is nothing to stop parents making representations or stating a preference. The reason I say that there is a distinction between the two is that the local authority, under the provisions of the Bill, as the noble Lord, Lord Ponsonby, has said, is bound to presume in favour of that preference so long as it meets the three criteria that I mentioned much earlier; that it is consistent with the statement that it does not impact adversely on other children, and that it is an efficient use of resources. It must presume in favour of that statement. In other words, if it is possible, consistent with the statement, to make provision within a local education authority, then that provision should be met within the local education authority.

561
However, if a parent makes representations for a non-maintained special school or an independent school, that has, by law, under the provisions of the Bill, to be taken into account. And the local authority can choose. The local authority can name a non-maintained special school or an independent school even if the parents have not stated a preference; if they have stated a preference for the maintained sector but have not made representations, it is also possible for the parents to appeal. It is equally possible for the parents to appeal if they have made representations and indeed stated a preference and the local authority has presumed in favour of that placement.
At the end of the day, the tribunal has to make a judgment about whether the local authority has made proper, appropriate provision consistent with the needs of the child. That is the judgment at the end of the day. So there is a slight edge and it is no more than that. There is no fettering of the freedom of the LEA. If provision can be made in the local authority and it is wholly consistent with all the provisions of the Act, there is a slight edge for the local authority provision. But at the end of the day, the needs of the child are paramount.
Baroness Seear: Is the Minister saying that if there is a vacancy in a local authority school, it is very unlikely that the child should go to an independent school?
11.30 p.m.
Baroness Blatch: I am saying that if there is provision in a local authority that can properly be provided consistent with all the details set out in a statement and that provision meets the three criteria I mentioned, then the authority could presume —indeed, it needs to presume—in favour of that local authority provision. It would have to give reasons to the parent why it had not placed the child consistent with the representations that had been made by the parent. Those would be the reasons. If that parent wished to appeal, he or she would go to the tribunal and it would be the tribunal which would make a judgment on whether that local authority provision was consistent with the statement.
Lord Jenkin of Roding: I must express my gratitude that my noble friend has manifestly done her best to justify the case for the provisions of the Bill as they are. But I have to say that, uncharacteristically for her, she has totally failed to convince me. In fact she has said that if parents are given a choice they will choose the independent schools; therefore we cannot give them a choice, because we do not want them to go to the independent school if there is a place available for them at the maintained school.
That is an astonishing argument to come from a Minister in the present Government. I must ask her to take this matter back to her right honourable friend and have another look at it. Is she seriously saying that as there are 21 schools for the blind, the 11 local authority maintained schools have to be full before a
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single pupil can exercise a preference? They can make their 15-day representation. I cannot believe that is what she means.
I say this in the context of schools for the visually handicapped and I also have experience of schools for the deaf. In my former constituency, there is the Sir Winston Churchill Schools for Deaf Children. When the parents had the choice, they used to come and live in Wanstead and Woodford in order to be near the Sir Winston Churchill Schools for Deaf Children. They came from all over the country because they recognised that it was the best school for the deaf. They cannot exercise any preference for it under the Bill.
The time is 11.30 p.m. and we cannot vote on this issue tonight. It would be foolish to do so. But I should like to bring representatives of the blind schools to talk to her right honourable friend. I cannot believe that is what she means. It is an astonishing case. I just do not believe that Ministers have grasped the reality of what is being said.
Baroness Blatch: I hear what my noble friend says. I want to make two points. First, there are enormous pressures on local authorities. I am sure we would all agree on that. We are talking about a very expensive part of the provision. We have already said in this Bill that there will be a guarantee through the statementing process that the provision is truly consistent—wholly consistent—with the statement that should be made for each child that is statemented. I believe the point is fair; because if the provision is more cost-effective, there is no contest anyway.
It is also inconceivable that children who at this moment are being placed in the deaf schools, the blind schools and the schools for behaviourally disturbed children, will not continue to be so placed. The local authority, even when the provision is more expensive, knows that that is the appropriate provision for which to make the choice. The distinction I make is that if provision can be made wholly consistent and more cost-effectively within the LEA borders, then the presumption must be in favour of the LEA being allowed to make that choice. That is the only distinction that I make.
But my noble friend is persistent. I promise the Committee that this is not my final word on this matter. I shall take it away. I shall reflect on what has been said, discuss it with my right honourable friend and colleagues in the department and continue to think about it until Report stage. I shall come back again with a wholly open mind.
Lord Jenkin of Roding: I am obliged to my noble friend.
Baroness Faithfull: Perhaps I may ask one final question. In considering a child's case a local authority may approach its treasurer. If the treasurer says it is too expensive then the child may not be statemented to go to the school that everybody else wants. Is that legal?
Baroness Blatch: My noble friend has the situation the wrong way round. The child is diagnosed as having special educational needs. Those needs are set

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out in a statement and then the education provision consistent with those needs must be found. It is reasonable for the treasurer to say to those involved in making that professional judgment that they must look for the most cost-effective solution. But the cost-effective solution they come up with must be wholly consistent with the statement, whatever the cost.
Baroness Masham of Ilton: As the Minister says she is going to take the amendment away perhaps I can ask a question. As well as the cost-effectiveness, will she take into consideration the happiness and well-being of the child?
Baroness Blatch: All aspects of the needs of the child will be considered. I have already said that the ascertainable wishes of the child, of the family and parental preferences are all built into the system. That is all part of the bank of information to be considered at the time.
The Duke of Norfolk: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 220A:
Page 95, line 30, leave out ("or grant-maintained") and insert ("grant-maintained or grant-maintained special").
The noble Baroness said: Amendment No. 220A is my second amendment. It is a sensible, logical extension of the Bill's provisions to embrace the new category of grant-maintained special schools which the Bill will establish. Government Amendment No. 222AA, to paragraph 3(4) of Schedule 9, which we will be debating later, seeks to extend similarly the parallel duty upon local education authorities so that the duty will apply also when an authority wishes to specify a grant-maintained special school in a statement. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 220B, 220BA and 220BB not moved.]
Clause 159, as amended, agreed to.
[Amendment No. 220C not moved.]
Schedule 9 [Making and maintenance of statements under section 159]:
Baroness Blatch Baroness Blatch moved Amendment No. 220D:
Page 185, line 35, leave out ("maintained school or grant-maintained") and insert ("maintained, grant-maintained or grant-maintained special").
The noble Baroness said: In moving Amendment No. 220D I shall speak also to Amendments Nos. 222AA, 222CAA and 222CAB. These are technical amendments which parliamentary counsel has prepared for us. The aim of Amendments Nos. 220D, 222AA and 222CAB is to extend various provisions within Schedule 9 to embrace the new category of grant-maintained special schools which this Bill will establish. I am confident that the Committee will agree that where the Bill gives parents new rights in respect of schools within the maintained sector, grant-maintained special schools should be included.
Amendment No. 222CAA is also a technical amendment. Paragraph I of Schedule 9 states that all
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references to a statement of special educational needs in Schedule 9 refer to a statement made under Clause 159 of the Bill. The specific reference in paragraph 6 is therefore superfluous. I beg to move.
Lord Ponsonby of Shulbrede: I realise that these are technical amendments but I have some technical queries. First, to be absolutely clear, is a grant-maintained special school a grant-maintained school? Secondly, in Part III of the Bill grant-maintained schools and grant-maintained special schools would now appear to have different legal identities. Is that the case for the rest of the Bill.
The first occurrence of a grant-maintained school in the Bill is in Clause 7. No mention is made of grant-maintained special schools. Are grant-maintained special schools included in the ambit of Clause 7?
Baroness Blatch: Grant-maintained special schools, grant-maintained schools and LEA-maintained schools are a class of school.
On Question, amendment agreed to.
[Amendments Nos.221 to 222A not moved.]
Baroness Blatch Baroness Blatch moved Amendment No.222AA:
Page 186, line 11, leave out ("or grant-maintained") and insert ("grant-maintained or grant-maintained special").
On Question, amendment agreed to.
[Amendment No.222B not moved.]
Baroness Blatch Baroness Blatch moved Amendment No.222BA:
Page 186, line 12, leave out ("in the area or) and insert ("maintained by").
On Question, amendment agreed to.
[Amendments Nos.222C and 222CA not moved.]
Baroness Blatch Baroness Blatch moved Amendments Nos.222CAA and 222CAB:
Page 187, line 13, leave out ("under section 159 of this Act").
Page 187, line 33, leave out ("or grant-maintained") and insert ("grant-maintained or grant-maintained special").
On Question, amendments agreed to.
[Amendments Nos.222CB to 222DA not moved.]
Baroness Blatch Baroness Blatch moved Amendment No.222E:
Page 188, line 1, leave out sub-paragraph (3) and insert:
("( ) Where the local education authority determine not to comply with the request—

(a) they shall give notice of that fact and of the effect of paragraph (b) below to the parent of the child, and

(b) the parent of the child may appeal to the Tribunal against the determination.").

The noble Baroness said: Amendment No. 222E is grouped with Amendment No. 223 to which the noble Lord, Lord Ponsonby, will speak. In speaking to the amendment in my name, I remind the Committee that a major thrust of the Bill is to enable parents of children with a statement of special educational needs to play a more active role in their children's special education and to give greater weight to their wishes. We have extended the 1980 Act provisions for parental choice of school to parents of children with a statement of SEN. We have also introduced the new right under paragraph 8 of Schedule 9 for a parent to

565
request a change of school named after the statement has been issued and the child is receiving the special educational provision that his statement specifies.
The amendment that I have placed before the Committee is a technical amendment. Its aim is to ensure that, should an authority determine not to comply with a request under this paragraph, the parent is informed by the authority of its decision and of the right to appeal to the SEN tribunal against the authority's decision. This is a sensible amendment and is also consistent with provisions elsewhere in Part III of the Bill which require an authority to inform parents of a decision regarding their child's special educational needs against which they may appeal to the tribunal and of that fact.
Lord Ponsonby of Shulbrede: Given the hour, I speak very briefly to Amendment No. 223. The amendment seeks to open the books. The local education authority should show a parent all the evidence that it intends to bring to any tribunal hearing. That prevents the LEA from springing confusing and technical evidence on a parent so as to win its case by what I believed to be unfair means. Unless the amendment is passed, the likelihood of the special needs tribunal turning into a highly formal lawyer-dominated process is much greater. I am sure that your Lordships would not like to see that happen. Parents will feel that they have to employ lawyers to have a chance at such a tribunal, so in the interests of what may be characterised as natural justice I will be moving this amendment.
Baroness Darcy (de Knayth): I welcome the Minister's amendment, Amendment No. 222E. I believe it to be extremely sensible. I also strongly support Amendment No. 223. It will be of great benefit to children and parents and may lighten the workload of the tribunal. I stress that it is not a freedom-of-information question; it refers only to professional reports on which the educational provision is based and which will in any case be disclosed at the tribunal when it comes to it.
11.45 p.m.
Baroness Blatch: I agree that as part of any discussion which the LEA has with a parent about ceasing to maintain a statement it should share the information it has which has led it to its view in the first place. Given good will and reasonable communication parents should understand and be party to an authority's decision. In many cases a parent will, after hearing what the authority has to say, agree with the LEA's view and what it proposes to do.
But if after all that they still cannot see eye to eye, and the parents disagree with an LEA's proposal to cease to maintain a statement, then they already have full rights to appeal built into the Bill—as the amendment acknowledges. Moreover, in any appeal, each side's evidence will be copied to the other. This happens with present appeals to the Secretary of State on other matters, as is required by the rules of natural justice, but the Committee will know that the right of appeal for parents who disagree with an LEA's
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proposal to cease to maintain a statement—which this paragraph introduces—is brand new. The LEA will know that the parent has that right of appeal.
Moreover, the code of practice which my department is developing, and over which we shall consult, will provide further guidance to schools on how much they should themselves do for children with special educational needs before involving the LEA. This will make it clearer for all concerned—authorities, governing bodies, schools and parents—just what the respective duties are, when a school has done as much as it reasonably can, and when an LEA needs to intervene—or indeed when it may be that a statement should be discontinued. I hope that that reassures the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Darcy (de Knayth).
On Question, amendment agreed to.
[Amendment No. 223 not moved.]
On Question, Whether Schedule 9, as amended, shall be agreed to?
Lord Swinfen: Perhaps I may make a brief point on the contents of statements. Can my noble friend assure the Committee that the need for speech therapy will form part of the educational content of a statement as I understand that at present many local authorities are still including it under part V of the statement, which means that there is no opportunity for appeal against it. This can form an important part of the education of a child. I should be grateful if my noble friend could give that undertaking.
Baroness Blatch: We had a long debate about speech therapy at the beginning of our proceedings today. I ask my noble friend whether he would be so kind as to read what we said earlier. I also said that both educational and non-educational needs would be included in making provisions for children with special needs.
Schedule 9, as amended, agreed to.
Clause 160 [Appeal against decision not to make statement]:
Lord Elton Lord Elton had given notice of his intention to move Amendments Nos. 224 and 225:
Page 95, line 42, at end insert:
("(1A) The notice specified in subsection (1) above shall include a statement of the cost, if any, referred to in subsection (3) of section 158 of this Act".).
Page 95, line 43, at end insert:
("either—
(a) the cost referred to in subsection (IA) of this section, or
(b)").
The noble Lord said: I have already spoken to these amendments as part of an earlier group. I should like to move them formally in case the Minister has anything to say about the points which they address. I beg the Committee's pardon. I spoke to these amendments a long time ago. I do not need to move them.
[Amendments Nos. 224 and 225 not moved.]
Clause 160 agreed to.
Clause 161 [Appeals against contents of statements]:
[Amendments Nos. 226 and 226ZA not moved.]
Clause 161 agreed to.
Clauses 162 and 163 agreed to.
Clause 164 [Assessment of educational needs at request of governing body of grant-maintained school]:
[Amendment No. 226A not moved.]
Clause 164 agreed to.
Clauses 165 and 166 agreed to.
Clause 167 [Constitution of Tribunal]:
Baroness Blatch Baroness Blatch moved Amendment No. 226B:
Page 99, line 43, leave out ("Regulations shall provide for the establishment of") and insert ("There shall be established").
The noble Baroness said: This amendment is grouped with Amendments Nos. 227A to 227D, 227DA and 227E. The Committee will be aware of the Government's wish to improve parents' statutory rights of appeal against the local authority's decisions in respect of children's special educational needs. This follows sustained criticism of the present appeals system with its excessive delays. In seeking to improve the appeals system our objectives have been to create a new system that is quick, simple, impartial and independent; a system in which informality is the key word but which at the same time gives parents complete confidence that their child's needs will be properly met and fully considered.
We firmly believe that the independent special educational needs tribunal is the best way to meet those objectives. We have made it clear both in this House and elsewhere that the tribunal should provide a simple and straightforward means of resolving disputes between parents and local authorities. The amendments before the Committee today are intended to clarify both the status and the authority of the tribunal and to emphasise its independence and impartiality. I commend the amendments to the Committee and beg to move Amendment No. 226B.
On Question, amendment agreed to.
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 227:
Page 99, line 46, at end insert ("and in Wales of a tribunal to be known as the Special Education Needs Tribunal for Wales.").
The noble Lord said: I regret that my noble friend Lord Elis-Thomas, in whose name the amendment also stands, is unable to be here due to a long-standing commitment. It is right to say that the proposal to set up a special educational needs tribunal has not been well received in Wales. The Welsh organisations with a special interest in the subject would have preferred a modification of the present appeals system. In particular, it is feared that the tribunal proposed by the Bill will be too legalistic, formal and inaccessible. That will tend to lead to apathy.
However, as the Government are against modifying the present appeals system, it is essential that there should be established an independent tribunal for Wales. I believe that that is attested by the special education consortium and by many voluntary organisations in Wales, including the Children in Wales organisation. I also believe that it is reflected in the responses which the Welsh Office has received but which it has not published.
In another place the Minister of State at the Welsh Office said that in Wales we have 14,000 children with
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statements. That represents about 2.9 per cent. of the school population. I believe that that is higher than the figure for the United Kingdom. I do not know—and I do not know whether the evidence is available—how many of the statements have been the subject of appeal. It would clearly be helpful if we had that information.
The case for setting up an independent Welsh tribunal is based on three main grounds. The first is one of benefit to the individual child. That should be the paramount principle. I am reminded of that in the light of the work which we did on the Children Act. By now the Welsh language is an essential part of the educational environment in Wales. In a sense we have at least two linguistic communities: the Welsh-speaking, bilingual community and the monolingual English-speaking community. We have our own national curriculum and a highly developed and excellent all-Wales strategy for the mentally handicapped. A statutory Welsh Language Board will be set up under the Welsh Language Bill, which is awaiting Second Reading in the Commons.
Clearly, against that kind of background, any special educational needs tribunal operating in Wales should have an intimate and immediate knowledge of the Welsh bilingual scene with its distinctive curriculum and funding arrangements. It should be familiar with the special educational needs which have a bilingual dimension. It should also be aware of the facilities available in Wales.
The voluntary bodies which have been in touch with me believe that it would be unfair and unreasonable to expect a Welsh member of the GB body, or a GB body listening from time to time to a Welsh complaint, to have a full and adequate understanding of the Welsh position that I have described and of the needs of a Welsh child. I understand that such a body would be in some difficulty in gaining the confidence of Welsh parents and educational bodies.
That is the main argument, but it is supported by two others. The second is the argument of convenience for parents and witnesses. An independent Welsh tribunal would be within easy reach of parents living in Wales. The travelling time and costs of parents and witnesses attending such a tribunal would be reduced. Also, it has not gone unnoticed that under Clause 170 it would be a criminal offence, punishable by a fine not exceeding level 3, not to attend a meeting of the tribunal if summoned to do so. I hope that the setting up of a Welsh tribunal would also lead to a reduction of work at the centre and to a speedier decision for the parent.
The third argument, which I shall only touch upon, is based on the right of Wales to have its own national institutions. The amendment would be consistent with the policy of successive Governments since the 1939–45 war to set up Welsh institutions to meet Welsh needs. For the three reasons that I have advanced and, in particular, for the first, we believe that the amendment has considerable merits. I beg to move.
Midnight
Viscount St. Davids: I appreciate the concerns of the noble Lord in wanting to ensure that the new tribunal arrangements fully reflect the needs of Wales and cover the particular features of the educational scene in the Principality. Let me assure him that I, too, would not countenance a situation which took no account of Welsh issues and interests. However, this can be achieved under the arrangements proposed in the Bill and there is no need to have a separate tribunal for Wales. There is no question of appeals in Wales not having a Welsh identity.
It may be helpful if I emphasise that the tribunal will not be established as a once and for all body in a fixed location; rather, we have made it quite clear that separate local tribunals will be set up and operate whenever and wherever appeals are lodged—and that includes different parts of Wales, as near as possible to the home of the appellants.
The tribunals will comprise three people—a legally qualified chairman from a panel appointed by the Lord Chancellor and lay members from a panel appointed by the Secretary of State. The Secretary of State for Wales will make appointments to the lay panel of people with the appropriate expertise and attributes to serve on such tribunals, as well as a knowledge and appreciation of Welsh life. I fully expect that the panel of chairmen appointed by the Lord Chancellor will also include people with similar attributes.
I am sure the noble Lord would agree that it is important that the right people are put forward for the tribunals to deal in an expert and sensitive way with the issues that will arise on such appeals as well as to cover Welsh interests. Accordingly, where appropriate, the tribunals will include people who not only have particular specialist experience but also have a particular appreciation of issues in the Principality. Bearing in mind the wide range of special needs, it must be open to question whether a separate Welsh tribunal system would always be able to offer the necessary expertise in cases of highly specialised difficulties. We do not want to cut Wales off from access to experts in their field. Further and most importantly, I am sure that the noble Lord would agree that, in considering the needs and provision for children with special educational needs, we must have a consistent approach between England and Wales.
The local tribunals will be focusing their attention on the statutory code of practice to which, in future, LEAs will be required to have regard. That will operate for England and Wales. It would not make sense to have a code operating different criteria in the two countries. Similarly, how could Members of the Committee contemplate a situation where tribunals in England applied different standards from those in Wales and vice versa? One tribunal system, with panels sitting in both England and Wales—and even within Wales in various locations—represents the most effective and fairest way of handling appeals and is in the best interests of the children concerned.
In addition, the noble Lord will note that the tribunals will be served by a central secretariat which, for appeals in Wales, will include Welsh Office
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officials. The Secretary of State for Wales will be consulting widely in Wales on the arrangements for the running of the tribunals. I see no reason why translation facilities cannot be provided where appropriate. In sum, I can see no cause for concern that no account will be taken of particular Welsh issues in the new arrangements.
It is in the interests of all children with special needs that the arrangements are applied consistently and uniformly in both England and Wales while at the same time taking account of Welsh circumstances and conditions. This applies both in terms of the composition of the tribunals and in the application of a common code of practice. The Bill's provisions achieve this. I trust that the noble Lord will accept that the system we envisage—local tribunals sitting as near as possible to an appellant's home, appointments to the panel of lay members of persons with a knowledge of the Welsh scene and a joint secretariat for appeals in Wales—obviates the need for his amendment and that he will seek to withdraw it.
Lord Prys-Davies: I have been following the Minister's response. I believe that it meets one of the main arguments that I have advanced for setting up an independent tribunal, but it leaves untouched the other two arguments. The Minister raised two objections in principle to setting up a tribunal. The first was that a Welsh tribunal would not have access to the necessary expertise. That argument has not been raised before in the other place or by any of the organisations. I should have thought that the tribunal would need access to specialist knowledge that is part of the Welsh experience itself.
The noble Viscount raises a second objection. If we had two independent tribunals, one for England and one for Wales, that would make it difficult to achieve a consistency of approach. I submit that that argument overlooks the fact that the code of practice will go a long way to ensure consistency of approach where that consistency is desirable, and provided also that it is consistent with flexibility where flexibility is required.
The noble Viscount referred us to Clause 170. Clause 170(2) (b) envisages that there will be more than one tribunal. I wonder whether the noble Viscount can take our amendment away and consider whether the department could in some way strengthen Clause 170(2) (b) to ensure that one of the tribunals will have special responsibility for Welsh cases. I should not like to draft the amendment at this time of night. I wonder whether the department could build a new subsection onto Clause 170 to reflect the thinking expressed by the noble Viscount.
Viscount St. Davids: I can give no such commitment, but I shall write to the noble Lord on the issue that he has raised to see whether I can reassure him that the proposals put forward in the Bill will meet with his satisfaction.
Lord Prys-Davies: I thank the noble Viscount for that response. In the light of his promise, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendments Nos. 227A and 227B:
Page 100, line 14, leave out ("under subsection (1) above may") and insert ("may—
( )").
Page 100, line 16, at end insert ("and
( ) make such other provision in connection with the establishment and continuation of the Tribunal as the Secretary of State considers necessary or desirable").
On Question, amendments agreed to.
Clause 167, as amended, agreed to.
Clauses 168 and 169 agreed to.
Clause 17O [Tribunal procedure]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 227C and 227D:
Page 101, line 7, leave out ("of a tribunal").
Page 101, line 9, leave out ("of the tribunal").
On Question, amendments agreed to.
Lord Swinfen Lord Swinfen moved Amendment No. 227DA:
Page 101, line 24, at end insert ("in particular those incurred by parents and parent befrienders in attending the tribunal").
The noble Lord said: This is a probing amendment. The desirability of reimbursing parents for the costs of attending tribunals was recognised by the Minister, Mr. Timothy Boswell, during the Bill's passage through the other place. He told the Committee in the other place on 28th January that the Government intended to pay parents' travel expenses to tribunals. He also told the Committee that the Government were open to representations on other matters relating to tribunals. That is welcome. Such costs can be considerable for parents, particularly those of deaf and deaf-blind children and children suffering other serious disabilities.
In recommending that commitment for legislation, I argue that it should be extended to cover the costs of parent befrienders. If a parent takes a solicitor to the tribunal, that solicitor's costs will usually be authorised. The National Deaf Children's Society and SENSE often support parents of deaf and deaf-blind children at tribunals. The staff of the National Deaf Children's Society have well over 1,000 cases annually and its volunteers deal with many hundreds more on a local basis. Many families lack the confidence to put forward clearly their case when they are in disagreement with their local education authority. For some from ethnic minorities or if the parents themselves are deaf, there are additional communication problems arising from the fact that English is not their first language. That may be so for those who are ethnically British who have sign as their first language; it does not necessarily mean those whose families originate from other parts of the world.
At present, such support is funded entirely from charitable sources. Why should solicitors be paid for helping parents at tribunals while members of charities, whose funding comes from voluntary sources, do not receive reimbursement from the tribunal? I beg to move.
Baroness Blatch: The wording of Clause 170(2) already embraces the principle contained in the amendment in making a general provision for the awarding of costs and expenses. In addition, Clause
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170(3) makes specific provision for the Secretary of State to pay such allowances to persons attending the tribunal,
"as he may with the consent of the Treasury determine".
That could include payment of expenses in the manner envisaged by the amendment.
I should make it clear that as a general rule the special needs tribunal will not award costs against an unsuccessful party to an appeal. Its role is to make educational judgments. We envisage that an order for costs would be made only when one of the parties had acted in a frivolous, vexatious or otherwise unreasonable manner, thereby putting both the other party and the tribunal to a great deal of wasted time and money.
However, I must emphasise that that power would be used only in the most exceptional circumstances. I have said that the principles behind the amendment are already contained in the Bill. As my noble friend said, Ministers made a specific commitment to the payment of parents' travel expenses during the Commons Committee stage. It would be inappropriate to include those or other detailed provisions for the payment of costs and expenses in primary legislation. Detailed provision of the type envisaged should be dealt with in the regulations and we shall consult widely on those during the autumn. I hope that my noble friend will feel able to withdraw the amendment.
Lord Swinfen: I shall certainly withdraw the amendment. I hope that my noble friend and those who advise her will consider seriously granting the expenses of parents' befrienders and not just those of solicitors who would expect to be paid for legally representing the parents. Many people would not dream of going to a solicitor. In fact, the very idea frightens them. They would rather seek help from charitable organisations which, my noble friend will know—because I am sure that she has contributed—obtain their funds from voluntary sources. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 227E:
Page 101, line 24, at end insert:
("( ) for taxing or otherwise settling any such costs or expenses (and, in particular, for enabling such costs to be taxed in the county court)").
On Question, amendment agreed to.
Clause 170, as amended, agreed to.
Clause 171 agreed to.
12.15 a.m.
Clause 172 [Special schools]:
Lord Judd Lord Judd moved Amendment No. 227F:
Page 102, line 14, at end insert:
("(2A) An educational unit within a hospital which is, for the time being, being approved by the Secretary of State as a school, shall be a maintained special school falling within subsection (2) above.").
The noble Lord said: There is clearly a powerful need to ensure high quality provision in all hospitals whenever a child is able to participate in education. As I understand it, the Government are proposing to

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provide a statutory basis for the education of children not in school. That is to be done by grouping all such provision under the heading of "pupil referral units".
However, the education of children in hospital is very different from that provided for those children who are likely to be the main recipients of education at "pupil referral units". Children are often in hospital for short periods of time and flexibility is required to meet their educational and social needs. The pupil referral units appear to be designed principally for children who have been excluded from school and who are likely to be in attendance at them for medium to long term periods. Both PRUs and hospital tuition units will have the objective of following the national curriculum, but that may not be so easily obtainable for children who are in hospital for short periods of time.
Both PRUs and hospital tuition units will require expert liaison between the unit and the pupils' home schools, although once again the nature of it will be different. For hospitals, the object will be to integrate the child back into the school straightaway, while with the pupil referral unit it may be a process that takes several months; indeed, in the end it may not prove possible.
The proposal in Amendment No. 228 to establish a grant-maintained school in each hospital for the education of children is surely an unduly cumbersome and even unduly bureaucratic way of making appropriate provision in hospitals. The Minister will be able to confirm the figures, but I believe that there are approximately 40 hospital schools that have been approved special schools and 150 other hospitals where there are sufficient children as in-patients to merit some form of professional educational input. Frequently, that may be only one person working on a part-time basis, but the larger departments will have a full-time staff attached to the school. Indeed, there may be provision for out-patients and day patients. However, the provision of many hospitals will have to be flexible because of the varying nature of paediatric caseloads. The establishment of a school at those hospitals, whether it be grant-maintained or LEA-maintained, with the additional cost and support that schools require is difficult to justify.
The intention of Amendments Nos. 227F and 228ZA is to require a hospital education unit to be set up in hospitals where children are normally admitted. It is hoped that regulations made by the Secretary of State would be able to specify the amount of educational provision that a child should receive in hospital and that regulations made under Clause 255 ("Inter-authority recoupment") will recognise that the home LEA of pupils has to pay the maintaining LEA the cost of educating the children.
I suggest that regulations should specify matters such as the minimum length of stay before a child can be educated. For example, can a child be educated for a stay in a hospital as short as a half day, especially where there are repeated admissions, as with children on dialysis? Can children who are day patients, perhaps in psychiatric out-patient units, be educated? What is the appropriate staffing ratio for hospital provision? I believe that there is now no current
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guidance on the pupil-teacher ratios in hospital provision as the 1974 circular covering the matter was replaced in 1990.
It should be noted that there are no cost-control mechanisms in Amendment No. 228 tabled in the name of the noble Lord, Lord Young. We would all wish that children in hospital should have one-to-one teaching provision, but, frankly, that seems to us to be unrealistic. Therefore, the Government need to say how much they are prepared to ask LEAs to pay for education in hospital.
The Government's amendments, for their part, do not seem to take account of hospital schools, although the financial problems that they face may be covered by Clause 255 ("Inter-authority recoupment"). The problems with hospital schools seem to be London problems, following the abolition of ILEA. There are hospital schools in all our greater metropolitan cities that have achieved a happy relationship with their maintaining LEA and they do not report any significant problem in their financing.
However, that is not the case in London; for example, there have recently been press reports that in one hospital school the maintaining LEA has decided to reduce the staff from 12 to six without there being any apparent reduction in the caseload of the school. One of the reasons given for this reduction is the difficulty that the LEA has of collecting the money from the home LEA of pupils in the hospital school. In putting forward these amendments, I hope that in her comments the Minister will be able to clarify the Government's position on hospital education and on how it will be properly financed. I beg to move.
Lord Addington: I rise briefly to support the amendment of the noble Lord, Lord Judd. It appears to me that special schools that are attached to hospitals would be far better off if they were attached to local authorities as there are constantly changing demands on them in terms of their pupils' needs. An LEA would surely be better placed to meet this constantly changing demand. On those grounds alone, surely the amendment of the noble Lord, Lord Judd, is sensible.
Lord Young of Dartington: I am pleased to be supported in my amendment by the noble Baroness, Lady Masham, the noble Lord, Lord Kilmarnock, and the noble Baroness, Lady Cox. The noble Baroness, Lady Cox, had to leave earlier and she asked me to apologise for that but she has to go to Poland early tomorrow morning. She assured me of her full support for this amendment.
I begin by thanking the noble Baroness, Lady Blatch, for the consideration that she and the Secretary of State have given to this matter since the Second Reading despite the 1,001 problems the Minister has had to deal with. I also wish to thank the officials in the Department for Education, who have wrestled with what is admittedly a difficult matter, and the many devoted hospital teachers who have helped myself and my colleagues.
I want to put the general case for this amendment to the noble Lord, Lord Judd, in particular, and to my noble friends as well as to Members on the other side

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of the Committee. That case is that the Government should make the educational service for sick children hospital-based rather than LEA area-based.
I illustrate the case by reference to a particular boy, James Warham, whose parents have, I gather, also written to the noble Baroness, Lady Blatch. James's parents have given permission for his name to be used in this debate. James shows how vitally needed is an educational service for sick children. He lives in the borough of Haringey but has for many years been a patient at Guy's hospital in the borough of Southwark. He has chronic renal failure and has to attend Guy's hospital three times a week for dialysis, which takes about 20 hours a week of his time. Over most of his life the famous Evelina hospital school at Guy's has received excellent support from ILEA, and as a result of that James is now coming up to his GCSE. If he does not get it, his parents fear that he could be on the dole for life. Qualifications are even more important for handicapped children than for non-handicapped children.
But the Guy's school is now the prime responsibility of Southwark Council and that council last week took the decision to cut down the staffing by about 50 per cent. at another great hospital school in the same borough for children with psychiatric problems at the Maudsley Hospital. Are cuts at Guy's also on the way as they are rumoured to be? If they are, Guy's school could be crippled and there could be nothing there for children from Haringey or from any other part of the country. Even if Southwark keeps up its payments, there is the business—the noble Lord, Lord Judd, mentioned this—of Southwark recouping the costs for James from Haringey Council.
In some parts of the country this business of reimbursement is proving an obstacle to proper education for sick children. Some Members of the Committee may have received a submission from the organisation Action for Sick Children in which reference is made to the action of Cumbria County Council in announcing that children treated in hospitals outside Cumbria—which is a considerable number—should not be provided with schooling unless prior written approval has been given by Cumbria. Such bureaucracy will inevitably cause delay, as it already does, in children receiving education in hospital which should be part of their rehabilitation and their rights as citizens. That is happening elsewhere as LEAs which are strapped for cash try to make ends meet.
The Government have decided—and the two speakers who immediately preceded me seem to agree—that the whole problem should be managed by replacing the power of LEAs to provide education for sick children by a duty. That is evident from a new amendment—Amendment No. 301A—which the noble Baroness, Lady Blatch, has tabled in the past few days. That could bring about some improvement but not enough so long as the duty is to be pushed on to LEAs. Most LEAs have already been too knocked about by the Government to jump to it when they are required as a duty to do something of this kind, which for some will mean doing something they have never
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done before. They will ask what use is a duty without resources, and there is no sign of any additional resources. That is the first serious fault with the Government's position.
Not all of the 600,000 or so children who are hospital in-patients in a year are away from their ordinary schools long enough to require special provision; but many are. Whether they receive any education depends at present upon the whim of geography. Some LEAs do nothing, others have one home tutor and no hospital schools. Thirty-eight per cent. of hospitals in the country with children's wards have no teaching service, and the provision of home tutoring is patchy, to say the least.
To remedy that extreme geographical injustice will require a new start, and in some cases a start from zero. But how is it to be done? How can one envisage that LEAs will be able to jump to do the job? Even though they will receive guidance, which I welcome, I do not believe that it will be possible for there to be enough precision about the new duty to make it stick. What standard of education will LEAs have a duty to provide for sick children: one home tutor for a whole county or a series of hospital schools? I am afraid that there will be endless argument and no doubt also court cases.
The other grievous fault with the Government's position is that sick children are being lumped in with disruptive children who have to be excluded from schools. All are to be looked after together by LEAs in accord with their new duty. But the needs of the two types of children are quite different and they should surely not be lumped together.
It appears to me that the situation in that respect has become worse since Second Reading. The Government appear to be proposing in Amendment No. 301A that hospital schools which are not already special schools, such as, for example, the North Tyneside General Hospital School as it is called although it is not a special school, should in future be called "pupil referral units" and subject to discipline and all kinds of inappropriate rules which may be suitable for truants but not for the sick. It is as though hospital schools, too, are to be "sin bins", as the pupil referral units will no doubt continue to be called. In the past it was sometimes thought that sickness is due to sin, but that was many centuries ago.
My amendment goes in the other direction, on the premise that education for sick children should be hospital based rather than area based. Mr. Eric Forth, the Schools Minister went a good way towards recognising that area boundaries should no longer be of such importance in his comments last year on the Greenwich judgment. In another place he stated:
"With the increasing delegation of power and influence to the school from the LEA, and in particular with more and more schools taking grant-maintained status and opting out of LEA control, the school and its local area are now of much more relevance than the LEA boundary. It would be odd to seek td reinforce such boundaries at this stage".
I wholeheartedly agree with Mr. Forth and believe that it is even more odd to reinforce such boundaries for sick children instead of basing the service on hospitals which can have children from all over the place, and across numerous LEA boundaries. The

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money should surely follow the child, to use one of the clichés of our debate, and not have to cross over LEA boundaries on the way.
The argument for hospital schools is strong as the foundation of an educational service for sick children. There are four specific reasons.
First, a school is recognised as the nub of the educational system. Everyone knows what a school is. Secondly, hospital schools have full-time teachers on their staffs with an understanding of their special tasks. They know from experience the best ways of helping a seriously ill child whose response to education may be intermittent and unpredictable but for whom the teachers should be available when needed. The hospital teachers who have to interact with the medical staff know most about the problems generated by an illness and are therefore in the best position to draw up a curriculum plan for each child related to the national curriculum. They are also best placed to train and, up to a point, to supervise the part-time home tutors whose experience has previously been in ordinary classrooms. Thirdly, a hospital school, whether or not made up of units, can have enough teachers to cover both primary and secondary stages and the main subject groups.
Fourthly, it is not much use a hospital school drawing up a curriculum plan unless it is carried through when the child leaves the hospital in the period of convalescence. That is more likely to happen if the home tutor is on the staff of the hospital school.
All those reasons favour hospital schools as the nub and heart of the service. They all point to the advantages of grant-maintained status being open to such schools, whether or not they are already special schools. If the new funding agency were responsible for the funding, they would have to work to a national policy which does not exist now, and is so much needed, whereby it would be decided which hospitals, and groups of hospitals, should have schools, in particular which should have new schools, and how the home tutoring service should be organised around the schools. The new National Association for the Education of Sick Children, which we hope to set up partly as a consequence of the Bill, will be ready to advise on such a plan and, all being well, will be heard from before the Bill has left this House.
Finally, I have to acknowledge that despite all the arguments I am—I believe with the Minister—in a paradoxical position on the amendment. The two sides of the House have, as it were, changed places. The whole drift of the Bill, and of the Minister's arguments on its behalf, is to promote grant-maintained schools. Yet the Government are turning their back on possibly over 100 new hospital schools which would wish to become grant maintained, and saying, "No, we don't want you. The job must be one for LEAs, so the scope of LEAs needs to be enlarged". Perhaps equally strangely, my position is to the contrary. I am generally opposed to ordinary grant-maintained schools and I am a strong supporter of LEAs with their often dedicated administrative staff and their unrivalled knowledge of local conditions and needs. But in this very special case that I have been arguing I believe that grant-maintained
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status could be of special benefit for the education of sick children. I have therefore had to modify my main position and give hospital schools, which are not already special schools, the option of GM status, but just as an exception.
I hope that my colleagues on these Benches—even the noble Lord, Lord Judd, himself—will bear with me, and that the noble Baroness, Lady Blatch, will not see my olive branch as a dagger just because it comes in the first place from this side of the House. It is certainly not meant to be.
I hope that the Minister will be able to say, not that the detail of the amendment is right, but that she is prepared to take it back and have another look at the whole matter and that she will show some flexibility of mind when the issue comes back to this Chamber. If she is able to do so, there will be a wide body of support among many devoted teachers and others who agree with Her Royal Highness Princess Diana when she spoke two days ago about sick children in her capacity as president of the National Children's Hospital at Great Ormond Street, which is at present the special responsibility of the London Borough of Camden. She spoke of the need,
"to encourage and guide, to nourish and nurture, and to listen with love to their needs in ways which clearly show our children that we value them. They in their turn will then learn how to value themselves".
I beg to move.
Baroness Masham of Ilton: In supporting the amendment, I have had to consolidate what I was going to say because the time is so late. It is very unfortunate that such important amendments come at this late hour. There is great concern on the part of many people, including teachers, some of whom have taken early retirement, over the many changes in health and education. One example is that of the trust hospitals, which have started charging for hospital school premises. Amendment No. 228 deals with the most brave and deserving children in our country, children with leukaemia, renal disease, muscular dystrophy, spinal injury, severe burns and numerous other problems.
Let us think for one moment of a recent orthopaedic tragedy: a girl who recently lost two of her friends when they walked back from a sweetshop and were killed by a driver. That girl now lies in a hospital in Teesside with both her legs amputated. She has to pick up the strands of her life, and education will help her do that.
Our amendment aims to remedy the lack of consistency in the education of sick children. It also tries to put a positive direction in the Bill. I hope that the proposal of a hospital-based and medically referred home education service will produce a more ordered system than the present, rather disjointed one. The last research on hospital schools showed that provision is very varied and patchy, ranging from 28 per cent. to 76 per cent., depending on the location of the hospital.
I feel that the amendments of the noble Lord, Lord Judd, are rather too narrow. Many children with specialised conditions often go to hospitals far from their home. They go to supra-regional specialising

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centres; they may be extra-contractual referrals. Education brings normality and continuity to those children.
Children in hospital vary greatly in ages and educational ability. Some will be taking examinations; others will be at the primary stage. There needs to be flexibility. Hospitals do not fit into local authority districts. That, I fear, is one of the problems with the amendments of the noble Lord, Lord Judd.
We have heard a lot from Ministers, particularly health Ministers, about the money following the patient. I should just like to know whether in this case the money will follow the patient. These are children and very important patients.
Lord Kilmarnock: I rise briefly to support Amendment No. 228. I respect the intention of the noble Lord, Lord Judd, but I believe that the noble Lord, Lord Young, has chosen a better route. The main question, as the noble Lord, Lord Young, said in the briefing on his amendment that he circulated, is:
"LEA or hospital school?"
He gave very good reasons why hospital based schools or clusters of hospital units serve the needs of children better. A real school with an identity and outreach facilities will be better than a dispersed LEA service. The noble Lord, Lord Young, said that the concept of the school was the nub of the issue. I think he was right.
A number of briefings have been circulated on this group of amendments advocating different solutions. Action for Sick Children wants to place a duty on the LEA to provide education for such children in order to bring children sick in hospital into legislative parity with children with special educational needs, which in fact they do not enjoy at present. On the other hand, it is rather persuasively argued by the National Standing Conference of Hospital Teachers that the burden of excluded pupils that LEAs are increasingly having to pick up will:
"leave insufficient funds to provide education for what could arguably be described as a sizeable and silent proportion of the most vulnerable group of children in the education system—those who are medically incapacitated".
The same paper goes on to call for:
"the creation of a structured, coherent, non-bureaucratic, amalgamated hospital and medical home education service".
I agree that that is a bit of a mouthful, but that body states earlier on and rather more simply that the suggestion of grant-maintained status for this branch of the school system is visionary. I repeat the word "visionary". I rather reject the suggestion of the noble Lord, Lord Judd, that it would be more cumbersome or more bureaucratic than what exists at present.
On practical grounds I therefore support the amendment proposed by the noble Lord, Lord Young. But I am also attracted to it on other grounds. In using the combined concepts of the grant-maintained school and the possibility of clustering, it works within the spirit of the Bill, as he suggested. I think that that is clever and constructive. It makes it more difficult for the Government to resist.
I am also intuitively attracted to the amendment on the ground that it seeks to loosen up a little the rigidities and time hallowed categories of the system.
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It addresses a particular, very special and rather complex need and endeavours to find a solution for it within the framework of the Bill—as the noble Lord speaking for his amendment suggested. I like that because it is a useful pointer to the direction in which the Government should go.
I do not want to muddy the waters of the noble Lord, Lord Young. He has a special limited objective and I support him fully in trying to achieve it. But I hope that it may also be the beginning of the opening up of the Government's mind toward greater flexibility in the creation of new types of school for various types of need, which will be the subject of later amendments during the course of the Bill in this Chamber.
So I hope very much that the process will begin here and that the Government will give a very sympathetic hearing to this batch of amendments.
12.45 a.m.
Baroness Blatch: I am grateful to the Committee for the contributions to this important debate. As the noble Baroness, Lady Masham, said, it is late and that is not at all satisfactory. However, we probably went round the houses rather too much earlier in the day.
I know that the noble Lord, Lord Young, has taken a particular interest in these matters and has commissioned some impartial research. I have listened extremely carefully to the arguments. The Committee will have to forgive me, but I find the support wholly inconsistent in that noble Lords have totally and consistently opposed grant-maintained status—after all, it is a form of self-government and there is no intellectual defence for approving it for these schools and not for any others. What is the difference? I am at a loss to understand the logic of the noble Lord's argument.
Baroness Masham of Ilton: Is it not that trust hospitals are now self-governing, and therefore it sounds as though it would be sensible to have the hospital school self-governing?
Baroness Blatch: Noble Lords opposed self-governing hospitals too. It is the inconsistency I find difficult to understand. We are talking of hospitals right across the country and many are not self-governing. I find an inconsistency in the notion that self-government should apply to this specific sector—with its problems which are not as straightforward as schools that are to become self-governing—and not others.
Lord Kilmarnock: Perhaps I may interrupt the noble Baroness, though I know it is pushing one's luck at this time of night. This is, in fact, a cross-party amendment. If the noble Baroness will cast her mind back to the speeches at Second Reading, she will recall that not everybody whose name is attached to this amendment was necessarily opposed to grant-maintained status, and I count myself among them. So I slightly resent what the noble Baroness said.
Baroness Blatch: I am talking of noble Lords who, in the course of this debate, said that they oppose grant-maintained status but for this specific purpose they believe it to be a good idea.
I am glad to be able to assure noble Lords that the Bill before this House will lead to a better co-ordinated and more responsive regime for the education of sick children. The department, in consultation with all those concerned, will be taking steps to ensure that this is so. But I choose my words "better co-ordinated and more responsive" with care. A uniform regime would not be appropriate, given the variety of the needs and circumstances of sick children. The objective for their education should be a common one. The means of delivering that objective will differ for each child and from hospital to hospital. The Bill makes two important changes to improve the current situation.
Not much has been said about parents' views in the matter. I happen to be somebody who had a child who died one month before his 15th birthday and who spent some time in and out of hospitals. I have to say that I would have been distraught if I had gone into hospital and found teachers sitting at his bedside on those days when he was probably well enough to do other things. It seemed to me that I should have had a choice in deciding whether or not he should be taught during those periods.
First, special schools established in hospitals will be able, once necessary regulations have been introduced, to opt for self-governing status. They include equally eminent institutions across the country. Self-governing status for a hospital school will be a helpful option for those schools which may consider they have the management and other expertise that they will need to make a go of things without the day-to-day supervision of an LEA. It could offer them greater freedom to manage their own affairs and run their own budgets, obtaining better value for money from the resources available to them.
The Bill offers a second important benefit for the education of sick children. As noble Lords are aware we have tabled a number of amendments to the Bill which will replace with a duty LEA's existing powers to secure the education of pupils otherwise than at school. That duty will apply to the education of sick children alongside those who may opt out of school for less worthy reasons and will require LEAs to develop and implement a coherent and considered policy for their education, setting that within the context of their schooling as a whole. The department will prepare guidance on the operation of the new "education otherwise" duty in so far as it affects the education of sick children, whether at home or in hospital. Continuity should be achieved through close liaison between the school, the hospital and the family. That should be the case whether or not formally constituted hospital schools exist in the area in question.
Perhaps I can say to the noble Lord, Lord Young, that there is no question of "education otherwise" in hospital being known as "pupil referral units". That
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was his expression not mine. "Education otherwise" in hospital will be part of the local authority's sick children's service.
There is, I believe, a substantial degree of agreement between us on these matters. We agree that those who work on behalf of sick children do an admirable job which may not have been sufficiently recognised in the past. We agree that the ability to acquire self-governing status will contribute to improving provision for children in hospital. The noble Lord has pointed to what he sees as a degree of variability between local authorities in the extent to which they provide education outside school for children who are sick. But I hope we agree that the reform of the provision of education otherwise than at school, backed up by the guidance which we shall issue on the education of sick children, will serve to secure better co-ordinated and more coherent provision for these children.
I must, however, take issue with one of the fundamental premises underlying the noble Lord's amendment. He takes the view that self-governing hospital schools should take over from local education authorities as centres for supervising the long-term education of sick children. He believes that in effect such schools should become centrally funded sick children's services. He has explained his view that hospitals, with their acquired knowledge of children's needs and case histories, are better placed than LEAs to undertake the central co-ordinating role. He argues that promoters should be able to establish schools in hospitals where teaching is provided as education otherwise and that those schools should have general responsibility for the education of sick children in the area.
This is a radical and forceful idea but I believe is misconceived. I take the point that while a child is in hospital the teaching staff there will be uniquely placed to judge his educational needs, informed in part by their knowledge of his medical condition. But we must bear in mind the need for continuity between the child's mainstream school, his education while at home and his education in hospital. It is the LEA which is best placed to take a long-term, overarching view of the education of any given sick child, encompassing the school, the home and the hospital. As the grant for GM schools is recovered from the LEA, the kind of regime which the noble Lord has in mind would reduce the amounts available to authorities for the provision of education otherwise and significantly lessen their scope to do so in cost-effective ways which took account of opportunities for financial planning and economy of scale.
In summary, I understand the force behind the noble Lord's arguments. He shares our concern to achieve the most we can for sick children who have to spend a good deal of their time outside school. I also find it gratifying that, in this context at least, he shares our general belief in self-governing status as a way forward for maintained schools. But I do not share his view that the self-governing hospital school is the appropriate place from which the education of sick children outside school should be overseen and

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co-ordinated. Their education is properly part of a continuum. Hence the importance of the new general duty on LEAs to which I have referred.
We have set in hand measures for this group of children. These break significant new ground. We must give them a chance to work.
I suggest that Amendment No. 227F in the name of the noble Lord, Lord Judd, is unnecessary. It is open to local education authorities to serve notice of proposals under Clause 173(2) for the setting up of a hospital special school where the educational provision was previously in the form of a unit. For the reasons I have already explained, it would be inappropriate to provide for units in hospitals which currently had the status of education otherwise to be able to apply direct to the Secretary of State for the status of special school or to be accorded that status automatically. The local education authority, with the central role which I have described, must be the most appropriate body to judge the circumstances in which such action is necessary. I therefore hope that the noble Lord will see fit to withdraw this amendment.
I have given your Lordships assurances that under this Bill the education of children in hospital will be safeguarded. I have said that it will lead to a better co-ordinated and more responsive regime, and I choose those words with care. A uniform regime would not be appropriate, given the variety of the needs and circumstances of sick children. The objective for their education should be a common one. The means of delivering that objective will differ for each child and from hospital to hospital. I hope that these amendments will not be pressed tonight.
Lord Judd: Again, we have had a courteously full reply from the Minister, which I am sure we all appreciate. I believe that this is much too important a debate to hold at one o'clock in the morning and it would be unreasonable to pursue the matter to a Division in the small hours.
I believe that we all wish to put on record our genuine appreciation to my noble friend Lord Young, not only for what he has said tonight but for the forthright and imaginative way in which he has brought to the attention of the nation a very real problem and challenge and the dangers that face both children and the committed staff who work with them in the hospitals. I cannot say too powerfully how important my noble friend's stand has been.
There is no difference across the Floor of the Committee about the importance of this issue and the need to respond to it convincingly. The issue is how we do it. I ask my noble friend to think a little more deeply about our own approach. What we have consistently argued from this side of the Committee during long sessions on the Bill is that our approach to education is a community approach. We believe that the local community is terribly important in the nation and that children in hospital are a sensitive part of community responsibility. To contract out of that sense of community responsibility and make some special ad hoc administrative arrangement would be unfortunately remiss in our general position.
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However, as it is clear that we shall not pursue this to a Division—I do not know whether my noble friend will pursue his amendment to a Division; that is his choice—perhaps I may say to the Minister that there is an issue here. There is a problem of funding, there is a problem of acute pressure and of cutting staff when we should be talking about how the service is improved. I wonder whether, in perhaps a word or two, she will give an indication that she will look hard at the issue and say whether she is prepared to consider direct funding to preserve the role of education in hospitals or, if she is not prepared to do that, whether she will, with her tough approach to so many matters, intervene to ensure that the arrangements for recoupment where there are hospitals that take children from a wide area are made effectively to apply.
Baroness Blatch: Perhaps I can help the noble Lord. We announced last month our intention to do away with financial recoupment for the majority of pupils who receive education outside of their home LEA. Clause 255 of the Bill gives the Secretary of State power to do that. The future funding of hospital provision must be considered as well in this context. The Government will shortly publish a consultation document on recoupment which will seek the views of everyone on this point.
Lord Young of Dartington: I thank my noble friend and the noble Baroness for what they have said. I agree fully with my noble friend about the importance of education being in the community and responsible to the community. But I put it to him that those sentiments do not apply with any great force to the education of sick children. It is partly because children go from all over the country to hospitals perhaps hundreds of miles away. They go from North Yorkshire to hospitals in Newcastle, from Cornwall to hospitals in Bristol, and so on, according to their health needs and where they will get the best attention. That being so, the ordinary considerations that apply to educational policy cannot really apply to this sphere.
The noble Baroness, Lady Blatch, asked how I could be so inconsistent, as she claimed I was. I am not, in my own view, any more, I imagine, than she thinks herself inconsistent. I am against grant-maintained status for ordinary schools because there is a system of which I do on the whole approve which covers the whole country. To take ordinary schools out of the control of the LEAs is potentially to destroy what is good and what is already there. In the case of education for sick children, there is no system. It is patchy and there are many holes in it. It needs to be built up almost from scratch.
I agree that at this stage of our proceedings we should not continue further to accuse each other of inconsistency. I plead again that the Minister be prepared to engage in some fresh thinking on what she in her remarks admitted was a very difficult matter. I hope that fresh thinking might be able to come through even before the Bill is enacted.
Amendment, by leave, withdrawn.
[Amendment No. 227G not moved.]
Clause 172 agreed to.
[Amendment Nos. 228 and 228ZA not moved.]
Schedule 10 agreed to.
Clause 173 [Establishment, etc. of maintained or grant-maintained schools]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 228A and 228B:
Page 103, line 29, leave out ("References in this Part of this Act") and insert:
("In this Part of this Act—
( ) references").
Page 103, line 31, at end insert ("and
( ) references to an alteration to a school include the transfer of the school to a new site.").
On Question, amendments agreed to.
Clause 173, as amended, agreed to.
Clause 174 [Procedure for dealing with proposals]:
[Amendments Nos. 229 and 230 not moved.]
Clause 174 agreed to.
Clause 175 agreed to.
Clause 176 [Maintained special school becoming grant-maintained special school]:
The Deputy Chairman of Committees (Lord Skelmersdale): I now call Amendment No. 230A in the name of the noble Duke, the Duke of Norfolk.
Lord Northbourne: Amendment No. 230B comes before Amendment No. 230A in the Marshalled List.
Noble Lords: It does not.
Lord Northbourne: It is grouped for it. However, I shall move Amendment No. 230A.
Page 105, line 22, at end insert:
("( ) Additionally, regulations may make provision for non-maintained denominational special schools to become grant-maintained special schools.
( ) Regulations shall require, before a non-maintained denominational special school becomes a grant-maintained special school in pursuance of the regulations—

(a) the submission to the Secretary of State of proposals for the purpose by the governing body of the school, and its trustees, and

(b) the approval of such proposals, as originally submitted or as modified by the Secretary of State (whether before or after they are approved).

( ) If the proposals are so approved, a governing body of the school shall be incorporated in accordance with Schedule 10 to this Act on the date of approval (referred to in this Part of this Act as the "incorporation date").
( ) Regulations made for the purposes of this section may apply any provision of—

(a) Chapter II or III of Part II of this Act,

(b) section 174 of this Act, or

(c) section 249 of this Act,

with or without modification.".
The noble Lord said: Clause 17.6 provides that by regulation, maintained special schools may become grant-maintained special schools. There is no equivalent provision on the face of the Bill for non-maintained denominational special schools.
There are 17 Roman Catholic non-maintained special schools meeting the needs of about 1,200 children who are sent to these schools by a number of LEAs, including authorities remote from the schools themselves. Their fees are competitive and most of these schools receive children from more than one
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LEA. Why then should they not be considered as candidates to be taken into the national family of grant-maintained schools?
A number of these special schools now report that in some instances LEAs are increasingly reluctant to refer Catholic pupils to them because they need these children to fill their own LEA special schools despite the fact that that may not be in the best interests of the children. If the policy of the Government is genuinely to secure the best and most appropriate provision for children with special educational needs at the most competitive cost, surely it is reasonable and sensible to ensure that their family of grant-maintained schools is developed by taking from the best of the existing schools, whatever their current status may happen to be.
If the Government believe in choice and diversity, surely they should aim to maintain a variety of denominational provision in this delicate area of special schools where sensitivity, familiarity and loving care are so important to the children. I beg to move.
Baroness Blatch: I am assuming that the noble Lord, Lord Northbourne, is speaking just to Amendment No. 230A?
Lord Northbourne: Yes.
Baroness Blatch: There are some 74 non-maintained special schools of which I believe some 21 would count as denominational schools. I believe that about 11 of those are Catholic schools. Nearly all the others have a non-denominational Christian ethos. All are associated with major charities, including the Royal National Institute for the Blind, Barnardos, and other such organisations. It would be impossible in terms of the character and the type of special provision which all these schools make to distinguish between the case for denominational and 'nondenominational non-maintained special schools becoming grant-maintained; and where could the line be drawn? There are very many independent schools which are approved to cater for children with special educational needs. It would be very hard to justify excluding these from the opportunity to become grant-maintained special schools if we accepted this amendment.
Let me explain the general case why the Government believe, after very careful consideration, that non-maintained special schools should not be able to become grant-maintained. Non-maintained special (and approved independent schools) should continue to be substantial providers of publicly funded special education if they provide efficient education, meet the demands of parents and attract custom from LEAs. There is no need therefore for such schools to become grant-maintained. They are part of the system already. Their future is properly controlled by the market and not by the Government or their agencies, which would be the case if they became grant-maintained. Non-maintained special schools embody the long-standing voluntary contribution to special education, and should continue to do so.

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An essential thrust of our policy to allow local authority-maintained schools to apply for self-governing status is that they will be able to seek autonomy in running their own affairs, which is already the lot of non-maintained special schools. This argument cannot apply to non-maintained special schools: they already enjoy this freedom. I know that it is very late, but I hope that the noble Lord will not press the amendment.
Lord Elton: I do not want to prolong things, but I am puzzled by subsection (1) which makes provision for the Secretary of State to approve a special school not being a maintained or grant-maintained school. I assume that there is some reason why that does not give the access which the noble Lord, Lord Northbourne, understandably wanted.
When my noble friend returns to this on Report, I hope that she will bear in mind - it is scarcely fair to ask her to do so now—that earlier she was speaking to the Committee about the apartheid that had sprung up between the independent and the state sector in education and the need to fill that gap. It seems that what the noble Lord, Lord Northbourne, is suggesting goes some way towards filling that gap and would not be something that one would wish to resist in principle.
Baroness Seear: I absolutely hate to prolong things, but if a school is in relative financial difficulties, can it not then apply? Supposing that it went completely broke, the Government would have to take it on -would they not? - because they have an obligation regarding the education of those children. Does it not make sense to say that they can enter and have some of the funding provided through this system, instead of being told that they cannot enter it in any way?
Baroness Blatch: Perhaps I can clear up the two points raised by my noble friend and the noble Baroness, Lady Seear. If those schools are losing customers and are not receiving children, that is usually because the LEAs are not sending children to them. The main providers of children to non-maintained special schools are the local authorities. They are the ones using them. Their record is good and I believe that it will be strengthened under the Bill.
Grant-maintained status is self-governing status. These schools have wholly self-governing status. If a self-governing grant-maintained school within the system equally started to lose customers, it too would be in trouble, and if it lost them to the degree where it was a serious problem it would actually close. So the effect would be the same where customers were lost. There would be no question of an LEA funding a grant-maintained school without having children there. The money follows the child. It follows the child into a grant-maintained special school and it follows the child into a non-maintained special school. Therefore, the degree of self-government is slightly greater for non-maintained special schools.
Lord Northbourne: I thank the noble Baroness. If I may say so, her last point was a very good one. Although there are issues that will need to be raised at
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Report stage in relation to ensuring that local authorities are absolutely fair in allocating pupils and do not give advantage to their own institutions because of pressure from trade unions or for any other reason, in the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Northbourne Lord Northbourne moved Amendment No. 230B:
Page 105, line 22, at end insert:
("( ) Where it seems to him to be in the interest of the pupils of the proposed school to do so, the Secretary of State may waive or vary the terms of this Act in relation to curriculum or premises.").
The noble Lord said: I rise to move Amendment No. 230B. I shall try to be brief but there is an issue here that needs raising. This is a probing amendment to find out the intention of the Government in relation to innovative educational methods for children with special educational needs. I am particularly concerned here about children with emotional and behavioural disturbances and particularly because so many of those children are often truanting.
To give an idea of the size of the problem, I have statistics here that 200,000 British children play truant every day; in urban areas one in five, and sometimes as many as one in three, of 12 to 16 year-olds play truant; seven out of 10 habitual truants leave school with no qualification; and 6 million people in the United Kingdom workforce are below recognised standards of numeracy and literacy such as to enable normal communication to occur. These are figures given by an organisation called Cities in Schools which I use as an example of the kind of situation to which my question relates.
This body, which at the moment is sponsored by Grand Met, Laing and certain other organisations, is a charitable organisation with a parent company in the United States. It uses an innovative method to pick up children who are truanting from school; help them to follow an educational programme and, with luck, get them back into the mainstream educational system.
Cities in Schools, as it calls itself, encourages parents to become involved in their children's development right from the start, and parents in turn are supported by volunteers and by the local community. A network of contacts is built around the children. Projects may be on site in an existing school or they may be off site in some situation which is less threatening to the children such as in one case a corner of a supermarket.
I want the noble Baroness, if possible, to satisfy me that the Act will enable such an organisation to obtain funding support in some way from government. I am concerned that an organisation of this kind, which is accessing charitable funds, should not use these funds simply to relieve the local education authority of its responsibilities to educate these young people with the taxpayers' money, which it is being given for the purpose, so that the local authority can simply put this in its pockets for more street lighting, or whatever else it may be.
Organisations which provide innovative, effective and economical education for this difficult and

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disruptive group of children should be entitled to their share of the taxpayers' money in one way or another, which would then be supplemented by the charitable money so as to enable them to extend their work to more and more of this needy group. One way this could be done would be to allow them to acquire grant-maintained status, and this could possibly be the best way. I should be grateful for any guidance that the noble Baroness can give me about the Government's attitude to this kind of situation, and I use that particular organisation only as an example. I beg to move.
Baroness Blatch: I can assure the noble Lord, Lord Northbourne, that the regulation-making power in relation to grant-maintained school status has been drawn widely to allow for particular circumstances. The general application of this Bill's enactments, as provided in Schedule 10, paragraph 14, means that the terms of this legislation can, if necessary, be applied with or without modification. Again, this will be done through regulations. The noble Lord will appreciate that I can give no guarantees at this stage that what he is seeking will be possible, but matters in connection with these regulations will be subject to the widest possible consultations.
The noble Lord raises another important point that is exercising all our minds at this time. He will also know that it is not as simple as just applying this part of the Bill, because so much about what causes truancy, or why children find it a better alternative to stand on street corners rather than being in the classroom, is subject to a number of other aspects of education. Nevertheless, we attach particular importance to regular school attendance. Schools should regard maximising attendance as one of their key tasks. We are helping by supporting projects to a value of some £9 million in 70 local authorities under the grants for educational support and training schemes for this year, 1993–94.
Money is being directed to those schools experiencing particular difficulty in maintaining high levels of attendance. Other organisations can also play their part, and Cities in Schools is, I know, doing some valuable work in the Tower Hamlets area of London. It is to be congratulated on its efforts to date. We are also working with City Challenge. We have recently built in an educational component to its work. There is much going on in that field, and I hope that the noble Lord will feel able to withdraw the amendment.
Lord Northbourne: Will the Minister give me an assurance that under some enactment the local authority will be obliged to make a contribution to that work?
Baroness Blatch: I cannot give a guarantee about that but between now and Report stage I shall give some thought to it to see what scope there is within this provision of the Bill, and I may write to the noble Lord.
Lord McIntosh of Haringey: Before the amendment is withdrawn, would the Minister care to advise the Committee whether it is proper for Back-Benchers to consult officials in the Box?
Lord Northbourne: I am grateful to the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 176 agreed to.
Clauses 177 and 178 agreed to.
Clause 179 [Provision of education at non-maintained schools]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 231 to 233:
Page 107, line 5, at end insert ("and that it is appropriate for the child to be provided with education at the particular school").
Page 107, line 6, at end insert ("the local education authority shall").
Page 107, line 7, leave out ("the authority shall").
On Question, amendments agreed to.
[Amendment No. 233A not moved.]
Baroness Blatch Baroness Blatch moved Amendments Nos. 234 and 235:
Page 107, line 8, leave out ("in pursuance of the arrangements, and") and insert ("for him at the school").
Page 107, line 9, after ("school") insert:
("pay the whole of the fees payable in respect of the board and lodging, and
( ) if board and lodging are provided for the child otherwise than at the school").
On Question, amendments agreed to.
[Amendment No. 235A not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 236:
Page 107, line 18, leave out subsection (4).
On Question, amendment agreed to.
Clause 179, as amended, agreed to.
[Amendment No. 237 not moved.]
Viscount Astor: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at eighteen minutes past one o'clock.