§ 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 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 444 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 445 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 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.
§ 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 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. 448 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 449 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.
450 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 452 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 453 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 454 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.
455 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 457 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. 458 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|
|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.|
|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.|
|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.|
|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.|
|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.|
|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.]|
|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.|
|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.]|
|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 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 461 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 462 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.
463 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 464 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.
§ Amendment, by leave, withdrawn.
§ Clause 148, as amended, agreed to.
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 466 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, 467 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 468 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 469 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.
470 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 471 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 472 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 473 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 474 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 475 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.
476 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 477 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 478 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 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 479 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.
480 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 481 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 482 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 483 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",484 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 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 485 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.
486 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 487 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 488 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.
489 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 490 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 491 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 492 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 493 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 495 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 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 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 496 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 497 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.498
§ 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 499 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 501 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 502 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 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.
503 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 504 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 505 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.
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.