Education Bill

HL Deb 29 April 1993 vol 545 cc511-90

House again in Committee.

Lord Judd moved Amendment No. 199ZA: After Clause 151, insert the following new clause: ("Access audits for children with special educational needs —(I) A local education authority shall from time to time determine the accessibility to schools for children who have a disability which either prevents or hinders them from making use of educational facilities of a kind generally provided for children in schools within the area of the local education authority. (2) A local education authority shall keep under review the arrangements made for school premises to be made accessible to children requiring special educational provision within the area of the local education authority. (3) The Secretary of State shall issue, and may from time to time revise, guidance to local education authorities on the level of resources which he considers necessary to educate children who have special educational needs in a school which is not a special school and to make school premises accessible to children requiring special educational provision within the area of the local education authority.").

The noble Lord said: In moving this amendment I wish to speak also to Amendments Nos. 199A, 200, 201 and 203. During the debate at the Committee stage in another place, when considering research into special educational needs, there was detailed discussion on the report entitled, Within Reach: Access for Disabled Children to Mainstream Education. That report was jointly commissioned from Coopers & Lybrand by the Spastics Society and the National Union of Teachers. As a result, the Government—I wish to put this matter on record as we appreciate the Government's action—accepted an amendment to the Bill requiring the Secretary of State to secure in particular information and research relating to the provision of education for children with special educational needs.

The Within Reach report concludes that once start-up costs have been met, costs of progressing integration are not particularly high. A crucial recommendation by Coopers & Lybrand in the report was the strong recommendation that, the Government encourage and support research into resolving the uncertainties and supplying the missing information. Without coherent data collection and a standardised approach to quantifying existing per capita expenditure on pupils with different levels of special need in both special and mainstream schools, then the extent of existing progress towards the greater integration aim of the 1981 Act cannot be assessed, let alone the cost of progressing further". That was stated in a report of Coopers & Lybrand.

Our contention is that the requirement for information and access audits of schools is essential to fulfil the Government's own policy of improving integration. During the course of its research, Coopers & Lybrand discovered that LEAs only held the original plans of each school in their area. The Department for Education had no idea, it seems, of the number, size, number of floors and age profile of schools in England and Wales. Therefore, the National Union of Teachers and the Spastics Society commissioned further research.

The report Within Reach is the first ever attempt to investigate the national costs of making schools accessible to pupils with limited mobility. More than 2,500 schools responded to a questionnaire distributed by the NUT to primary and secondary schools in England and Wales. From their replies Coopers & Lybrand found that unconverted Victorian and Edwardian multi-floor buildings were the most common barriers to access. The research was undertaken by Coopers & Lybrand to assist both the Government and local education authorities in obtaining a clearer idea of the resources which will be required to implement their policies for fuller integration of pupils with special needs in mainstream schools.

In accordance with the findings of the first report, the schools' survey, recommendations include a call for government to take action to produce targeted plans to ensure that schools are brought up to the accessibility standards detailed in the Within Reach report. The new clause we are putting forward calls for local education authorities to undertake access audits for children with special educational needs. The LEAs should keep under review arrangements to make schools accessible to facilitate progressive integration of pupils with special educational needs into mainstream education. It is crucial that the Secretary of State takes a national view in support of the Government's own policy for fuller integration. National guidance should be issued. There is no excuse for not providing equal educational opportunities for pupils with disabilities.

I have spoken so far on Amendment No. 199ZA. I shall now say a few words on Amendment No. 199A. There is little doubt that the tentative moves in this country towards integration over the past decade are now threatened by new market forces in the education scene. In addition, increased pressures on mainstream schools have in many cases prompted a less tolerant approach by teachers and heads towards the inclusion of those pupils with disabilities or learning difficulties. At the same time the importance of educating all children together has not lessened. The social and human rights reasons underpinning integration remain as strong as they have ever been. I beg to move.

Lord Addington

This group of amendments brings us to the subject of integration. There are several question marks over this subject. Amendment No. 199ZA is a sensible amendment as it suggests access audits to determine what the needs are. My name is added to Amendment No. 201. I believe the gremlins have got into the Marshalled List as I do not believe that my name should have been added to the amendment. When we are considering integration we have to be careful to ensure that individual needs are met. There has been a movement to integrate everyone with special needs into mainstream education as the only way forward. I believe that cannot be right as pupils with special educational needs have many different types of problem.

It is absurd, however, to exclude someone from a school simply because he is in a wheelchair. Ramps should be provided. However, it is questionable whether someone who is badly dyslexic and who has not received the same level of tuition as his peers should be forced to enter a mainstream school. That pupil may feel that he is a failure. We discussed this matter earlier. Such a pupil may have an emotional reaction to such integration. Any child who suffers from a perception learning problem may feel isolated from his fellows and from the learning process in a mainstream school.

I hope the Committee will bear in mind that there are no absolute rules in this matter. There is no blanket rule for everyone. We should not permit any attack on special schools as there will always be certain pupils who require special schools. As teaching techniques develop and staff receive more training in this area, the role of special schools may diminish. If special units are attached to mainstream schools, a very small percentage of pupils may attend special schools. Nevertheless, there will always be a role for specialist teaching in special schools. This group of amendments concerns the concept of how far we should take integration. We must always remember that individual needs must be the bottom line of any consideration of this subject.

Baroness Darcy (de Knayth)

I welcome the debate on integration. It is essential that we move forward on this matter, although we debated integration on an earlier bunch of amendments. The 1981 Act made integration possible but there was no compulsion to integrate. However, the danger at present is that we might be going backwards with the so-called parental veto on Clause 152(1). At present I am in correspondence with the Minister as I am seeking clarification of the Government's intentions. I hope that I shall eventually obtain a positive response. However, I was quite worried about what the noble Baroness, Lady Blatch, said on Clause 152(1) when she spoke much earlier on a large and disparate group of amendments.

I hope very much that the noble Baroness or the noble Lord, Lord Henley, if he deals with that clause, will agree to meet me and discuss the matter outside the Chamber as it is extremely complicated. I should be grateful for that assurance.

I shall also speak to Amendment No. 201 in my name, which gives the smallest possible nudge towards integration possible. However, I shall speak first to Amendment No. 199A. I shall be as brief as I can, but I have kept quiet all evening because I knew that I would take a little time on this subject.

Amendment No. 199A provides the strongest commitment to integration. It has a great deal to recommend it because it includes a commitment, and without such a commitment I do not believe that we shall make much progress. It refers to planning. That is crucial. I have seen in Hounslow how successful a calm, carefully planned but committed move towards integration can be. I spoke to pupils there who all said how beneficial it had been for them and that the education had stretched them immensely.

The reference to a "compelling" reason provides a let-out so that when an individual child needs a limited period of special provision that can be provided but there is still a commitment to integration.

On the question of integration, I was very struck by the experience of a mother with a disability, who was very much a survivor rather than a beneficiary of the special school system, who came to talk to the All-Party Disablement Group. Her daughter has a similar genetic inherited disability and goes to a mainstream school. The mother told us how deep the segregation had been in her case. She would travel to and from the special school in her special transport, never mixing with able-bodied peers. She lived a parallel existence in a parallel world. That struck me very forcibly.

The lady who is the joint co-ordinator of Parents in Partnership provided another very good description of the position. She said: Friendship and a feeling of belonging are as important to a disabled child/young person as it is to an able-bodied youngster. Community is part of life, and they deserve to be part of the whole… When you segregate. you effectively segregate the whole family, you segregate the disabled child from their peers, and the rest of the family from the extended family of connections which naturally occur through mainstream education". The child with a special need needs the model of the "ordinary" child. The latter learns very much from his contemporary with a special need. If they can grow up and laugh and play and fight together they have a far better chance of understanding and co-existing happily than if they are suddenly thrust face to face in uneasy integration into a harsh, competitive adult world.

I shall now move on swiftly and speak briefly to Amendment No. 201. Before doing so I should like to say that I support Amendment No. 203 in the names of my noble friend Lady Warnock and the noble Baroness, Lady Faithfull. It relates to children with statements in special schools. I wonder whether the Government are now collecting figures relating to children without statements in special schools. Figures used to be collected and published, but that stopped. I believe that the figures are again to be published and I should be interested to know whether that is the case.

Amendment No. 201 would ensure that LEAs had regard to the potential benefits which provision for a statemented child might bring to other persons when considering the efficient use of resources. That does not mean only other pupils. It includes teachers, governors and visitors with disability, particularly now that schools are used out of school hours for other activities.

I should like to give an example which has been provided by IPSEA. Perhaps I should declare that I am a director of IPSEA. The example is the case of Lawrence. Lawrence was refused a place in an ordinary secondary school because his LEA claimed that adapting the school to permit him access would not represent "an efficient use of resources". Lawrence is physically disabled and relies on calipers and a wheelchair for mobility. The main adaptation needed to the school was the installation of a stair lift. Lawrence and his mother visited the school, after his refusal, and discovered that there was another boy in a wheelchair already on the school roll. That boy, Ben, was being taught some of the time on his own, in the footwell at the bottom of a staircase. On occasions, Lawrence's mother was told, other students would physically lift Ben up and down stairs. Clearly any adaptations made to admit Lawrence would have brought immediate and equivalent benefit to Ben, in strict accounting terms thus doubling the efficiency of the expenditure on a stair lift. That was an example of another child who was already at the school, not even a potential future pupil, who would benefit.

Therefore, I hope that I shall receive an encouraging reply in respect of this very modest amendment. It is important. If I do not receive a satisfactory reply I may return to the matter at a later stage, although I shall not move this amendment at this stage because it forms part of a huge group of amendments.

8.45 p.m.

Baroness Faithfull

I should like to speak to Amendment No. 203 in my name. The purpose of the amendment is to prevent a child who has neither been assessed nor issued with a statement being placed in a special school unless that school is a hospital school.

The Secretary of State would expect that children in special schools would normally be afforded the protection of a statement. However, it is clear that some LEAs are ignoring that advice. That was highlighted in a recent study by the Centre for Studies on Integration in Education. There are a number of concerns about children placed in a special school without a statement.

Without a statement a child's case is not reviewed, whereas if the child is statemented its case must be reviewed from time to time. Equally, the child's case must be monitored. Some children remain in residential schools when they have so improved that they could return to their homes and ordinary school. Without monitoring they might not return home. We feel that it is very important that it should be clearly understood that every child who is placed in a special school should be statemented.

Baroness Warnock

I very strongly support that amendment.

Baroness Hamwee

As the noble Lord, Lord Judd, said in introducing this group of amendments that there is evidence of head teachers being reluctant to accept into schools children whose needs do not easily fit into the existing pattern of school life, I wonder whether he could comment on whether that is a matter of resources rather than of other difficulties. It is my experience that heads are very open to the needs of children who require special assistance, whether of a physical kind or in the form of additional teaching. However, there is the usual problem of juggling resources and taking a decision when a school's budget is being set as to which of a number of competing priorities will win the day.

Lord Judd

It is perfectly proper that the noble Baroness, Lady Hamwee, has raised that question. There are many dedicated head teachers with a great sense of social commitment who would move heaven and earth to accommodate such people. Unfortunately, they are not everywhere. It is partly a problem of resources but it is also partly another problem of pressure concerning performance, leagues and all the rest, which I do not think we should go into now, although that is a very relevant issue.

Lord Pearson of Rannoch

I should like to speak to Amendment No. 200 which is in my name. The amendment seeks to differentiate between mentally handicapped children and all other children with special educational needs. It seeks to exonerate them from the presumption in favour of educating them in a school for normal children which seems to exist in Clause 152.

My authority, such as it is, for moving the amendment is, first, that I am the father of a 12 year-old girl who suffers from Down's syndrome and, secondly, that I recently chaired the Special Education Needs sub-committee of the Teacher Education Committee of the Council for National Academic Awards. In that latter capacity I entered the world of the academic special education needs specialists. I have to say that I found it rather crowded with people who hold lots of well-meaning theories about children with one kind of handicap or another but who were rather short on personal experience in the field upon which they pontificated and upon which they often wielded very great influence.

By "personal experience" I mean actually suffering from a handicap themselves or caring for a relative who did. I was surprised, for instance, to discover that no other member of the sub-committee which I chaired had a mentally handicapped close relative or indeed a close relative with any form of what most of us would regard as a special education need. I was further surprised to learn that the more enthusiastic of the SEN enthusiasts, of which my committee seem to be entirely composed, believed that nearly all children should be regarded as having a special education need at some time in their education. I suppose that this may have been a simple empire-building exercise; but it opened my eyes to the breadth of the possible meaning of the expression, "special education needs".

Be that as it may, nowhere was the lack of real experience to which I have referred more obvious than in the case of the experts dealing with mental handicap. One measure of the depth of this ignorance is that these are largely the sort of people who have decreed that the term "mental handicap" is now somehow unkind or inappropriate. They have instead invented the expression "people with learning disabilities" and woe betide anyone who dares not to use it.

It is of course true that mentally handicapped children and adults suffer from learning disabilities. But their condition goes far wider and deeper than that, and to pretend that it does not by sticking a cosy label on them helps no one or anything except, I suppose, the consciences or perhaps the subconscious of the experts in question.

I must emphasise that I am seeking to exclude only mentally handicapped, statemented children from ordinary schools unless of course their parents actually want them to go there and unless the school in question can really provide the unique care that mentally handicapped children need at school.

I do understand what the Bill and the other amendments which refer to special education needs are trying to do for all other categories of special education needs children, and I am not sufficiently expert in these other areas to comment on them. I confess that I fear there may be an element of wishful thinking even in the attempt to force the pace of integration into ordinary schools of children with other categories of special education need. I suppose I fear this because normal children can be quite cruel and in the present indisciplined state of many of our schools I worry that the disadvantaged will be subject to considerable bullying and unkindness when no one in authority is looking.

But the Bill itself, together with the amendments tabled by the noble Baroness, Lady David—to whom, together with my noble friend the Minister I wish to add my condolences—and by the noble Baroness, Lady Darcy (de Knayth), the noble Baroness, Lady Warnock, my noble friend Lady Faithfull, and others, all amount to an honourable attempt to integrate the physically handicapped, the dyslexic, those suffering from violent or unusually difficult home backgrounds and others into our normal schools. But most of the children in those categories can keep up with the lessons for normal children, at least mentally. Indeed, they often outshine normal children academically. And, what is more, they can answer the other children back if they are unkindly teased. In short, they can largely hold their own in the playground and they do not hold the other children back in the classroom. We cannot say that of the mentally handicapped.

Having criticised the Bill and the other amendments to it in this category for not seeing that mental handicap should be treated differently from other kinds of special education needs, I hope that it will be helpful if I say where I believe the emphasis should be laid for mentally handicapped children. I am in no doubt at all that many, if not most of them, are at their happiest in a good special school or a sheltered community type of school, one of which my own daughter is lucky enough to attend.

I mention this also because our well intentioned community care policy (for which I appreciate that the Minister is in no way responsible) is beginning to work against such schools. I suppose that this was to be expected because our community care policy is the elder sister of the philosophy which I am criticising here. My own view of our community care policy is that it is fundamentally flawed because there actually is not much of a community where we are forcing the mentally ill and the mentally handicapped to go, and even where there is, I am afraid that it does not care as much as the authors of the policy hoped it might. One result of these two attractive but naive sisters working in tandem is that local authorities are beginning to refuse to fund mentally handicapped children at least in special non-maintained schools, using such irrelevant excuses as that the schools in question do not stick closely enough to the national curriculum.

I suspect that this sort of attitude is also strengthened by the Government's very regrettable and misinformed decision to leave sheltered and village communities off the list of provision which local authorities are encouraged to support.

I know that my noble friend cannot answer for much of this latter point, criticising our community care policy, and indeed I made the point personally to my right honourable friend the Secretary of State for Health only yesterday. But our Departments of Health, Social Security, and Education, and our local education authorities are inevitably intertwined in our policies for the mentally handicapped. I trust therefore that the Committee will not think that I have strayed too far from the specific purposes of the Bill. I am merely trying to show how good intentions towards the mentally handicapped can pave the way to a very private hell which only those particularly unfortunate people must travel. I very much hope that the Committee will not force our mentally handicapped children down that road, and that the Committee will therefore feel able to support the amendment.

Lord Glenamara

Perhaps I may—

Baroness Cox

My name is linked with that of the noble Lord, Lord Pearson, on the amendment. I should like to follow him, since it follows logically, in support of what he said. Perhaps I may take this opportunity to say how much I agree with the remarks made by the noble Lord, Lord Addington, in his contribution.

I speak not as a parent of a mentally handicapped child but as a nurse who has had the privilege of caring for many people who are profoundly handicapped. I have also had the privilege of being a patron of Restcare, an organisation established by and for parents with profoundly handicapped children.

Like my noble friend Lord Pearson I make no apology for using the term "mentally handicapped" although I know that it is not at the moment the professionally correct terminology. I do so because the parents of the families in which there are profoundly mentally handicapped children have told me that they prefer that title because it does not confuse the issue. I therefore use that terminology out of deference to their wishes and their concerns.

Of course I respect the principles and policies underlying the theme of integration. I recognise that for many young people integration has been a very good thing. I also recognise that when the noble Baroness, Lady Darcy (de Knayth) speaks about schools for children with special education needs in an earlier era, perhaps much was left to be desired. We have made much progress both in mainstream education in providing for those children and in the schools which still cater for them.

I have two worries about the Bill as presently drafted. That is why I support the amendment in the name of the noble Lord, Lord Pearson. I am worried about the presumption in favour of integration: the presumption that integration is the most appropriate policy for all children with special educational needs. In this amendment our concern is especially for the mentally handicapped.

I am worried that the clause that we are discussing puts an onus on parents to make a special case for their children to be treated specially. They have to make the case for them not to go into mainstream education. Many parents have been subjected to enormous pressure from professional advisers and local education authorities to send their children to mainstream schools. Some of them have succumbed to that pressure against their better instincts and deep knowledge of their own children. Over and above that, it must surely be obvious to anyone that while integration may suit many children with a mental handicap—and I rejoice for them—for others it can be a recipe for unhappiness. Day after day, week after week, month after month they are brought up against the agonising reality that they do not learn as quickly as other children. They are brought up against the agonising reality that no matter how much people try to integrate them, they are different. They are disadvantaged. They are in a situation of real unhappiness and isolation.

In the past couple of days I happened to mention this amendment to a teacher in a secondary school in the North of England. The school had a special regional unit for pupils with special educational needs. He described how a pupil with mental handicap had been put in a mainstream class. Because the teacher could not cope, the pupil was repeatedly sent outside the classroom. My friend described how he would find that pupil sitting alone in the library, unhappy and demoralised. That is isolation, not integration, in the concept of mainstream education.

I was speaking to another person who is chairman of governors at a primary school. He described in vivid terms how six of the pupils in that primary school who are all mentally handicapped are subjected to quite frequent bullying. I do not say that that happens everywhere. There are many places in mainstream education—and I respect them wholeheartedly—where pupils with mental handicap are integrated, and they flourish. There are many examples of good practice. But the examples I have given are not atypical; and they are real. The law is there to protect against bad practice. It is there to promote good practice, but it must protect primarily against bad practice. Over and above that, there is the inherent problem that many children with mental handicap may be far happier in a more sheltered and more specialised environment where they are enabled and encouraged to realise their potential with the protection that a special school can afford.

I should like to emphasise that I believe that parents know best. The Government are committed to parental choice. I believe that we should offer a genuine, open, unbiased choice without this preconception, this presumption, that integration is always best and should always be chosen unless there are real reasons against it. I am in favour of integration where appropriate, but I do not think that it should be the main presumption. While it is the main presumption it has repercussions in terms of policies—of promoting funding policies favouring integration against special provision. It also puts great pressures on parents who already have to suffer the tragedy of having a mentally handicapped child. My support for the amendment is based on a belief that the choice for those parents should be open. It should not be prejudiced at the beginning in favour of a presumption that they ought to send their children into mainstream education. That is why I would like the amendment to be supported. It does not build in that presumption and that pressure.

9 p.m.

Lord Glenamara

Earlier in the day I said that I would raise again the question of parental choice. I wish to put a view which is rather different from that of the noble Baroness, Lady Cox. I do not believe that the presumption she talked about is a reality in most local authority areas.

I have a friend whose daughter has a son with Down's syndrome. I believe that Down's syndrome is one of the saddest disabilities of all. The little boy is four-and-a-half years of age. At present he attends a mainstream nursery school. His parents have avoided the statement process which would be his only passport to assistance, because the only provision would have meant a long daily ride to school in a bus. His parents, like many parents throughout the United Kingdom, I have discovered, want the right of choice between a mainstream school or a special school.

I believe, and I speak as somebody who started life as a teacher, that the educational needs of a child with learning difficulties can be met in any school, provided that the local authority supplies the resources. In the school of which the noble Baroness spoke, the resources were obviously not provided.

Baroness Cox

I did say that one of the schools to which I referred had a special regional unit for pupils with special educational needs, and that was still occurring. So resources were not the issue.

Lord Glenamara

In the case of the boy sitting in the library I am sure that the resources were not provided. Only local authorities have the power to allocate such resources and the power to decide which school a special needs child shall attend. Therefore, parents have no right of choice of school. A child may be sent to a school which they believe to be not at all suitable. That is happening.

The National Down's Syndrome Association finds that its members often have to fight for years against the local authority to find a mainstream placement. I agree that some parents do not want a mainstream placement. Some want a special school. All I am saying is that the choice ought to be there. Most parents do not want their children to mix only with children suffering from the same disability. Those of us who have been teachers know that children often learn far more from each other than they do from their teachers. But if all the children suffer from Down's syndrome they will not learn very much from each other. In the case of that disability, it is a disaster for their speech and development.

Unfortunately, there is nothing at all in Part III of the Bill which will help. There are new appeal tribunals, which I welcome. They are long overdue. There is a right for parents to state a preference for a school, and I welcome that. However, the local authority does not have to grant that preference. More importantly, parents will have no option but to choose a school where the resources have been provided by the local authority. The Bill strengthens the hand of local authorities and their special schools.

I repeat the point I made earlier. Parents are newly granted an absolute right to have their child sent to a special school. I do not know whether the noble Lord, Lord Henley, will reply, but if he reads the clause he will discover that if English words mean anything they carry that meaning. However, there is no corresponding right for a mainstream placement.

The local authority's duty to arrange for a mainstream place continues to be subject to three provisos which are set out in Clause 152(2) (a), (b) and (c); namely, that the child's needs can be met there, that the placement will not affect the efficient education of other children, and that it will be an efficient use of resources to send the child there.

With regard to the last of those provisos, while the local authorities continue to pour resources into special schools, it can never be, in the strict sense, financially efficient to integrate in any one child's case. The other two points, (a) and (b), are inevitably interpreted subjectively by the local authority.

Finally, I point out that, alarmingly, new plans come into force next year to hand over financial management to all special schools. The LMS funding formula is based on the number of places available rather than the number of pupils. LEAs are obliged to pay for a fixed number of places. They will therefore have a financial incentive, to say the least, to fill those places. So the situation will get worse. It will become ossified, with the special schools filling the centre of the stage.

I should like to make it absolutely clear that I am not opposed to special schools. At present I am the president of a college that trains disabled people. I followed the noble Baroness, Lady Masham, in the post. She knows very well the college to which I refer. I am very proud of it and I am proud of many special schools. However, the fact remains that for the past few years those involved in education have been trying to persuade parents that integration is the right thing and that is the way to treat their children. They have accepted our point of view. All they want is a choice.

I have deliberately not tabled an amendment on this point but I hope that the noble Baroness—I am sorry that she is not in the Chamber—will think about the matter and before Report stage come up with some measure to help those parents. I am quite prepared to put forward an amendment at that stage but I would much rather that the Government brought forward an amendment to deal with the point.

Baroness Masham of Ilton

I should like to ask the Minister a question about Amendment No. 203 with regard to statements. If a statement will benefit a child, why do some children have statements and other children do not? Is it because the local authorities are overloaded and not able to cope? I should like an answer from the Minister as it is very difficult to make legislation when one is not sure why some children are without statements.

I go along with the comments made by the noble Lord, Lord Glenamara. I believe that choice is needed. Some children do not thrive in a school and if they are unhappy perhaps they should go to a school where they do thrive. I believe that choice gives satisfaction.

Lord Pearson of Rannoch

Before my noble friend answers that question, perhaps I could pick up on three points made by the noble Lord, Lord Glenamara. He said that he was speaking in the light of his experience of the four year-old son of a friend. I must suggest that that is rather different to dealing with a member of his own family whom he may not know so well.

Secondly, he made it clear that he was speaking for the Down's Syndrome Parents' Association, or that he supported to some extent the views that it was putting forward. Most of the members of the Down's Syndrome Parents' Association favour a normal placement for their children, but they are by no means the majority. I should be very surprised if they comprised even half the number of parents who have a Down's Syndrome child. When one allies that pressure to the pressure that he admitted comes from educationists toward mainstream education for their children, noble Lords will understand the kind of pressure that a parent comes under in order to put his or her child in a mainstream school. That is exactly the pressure that my wife and I suffered in facing that dilemma. I am extremely glad to say that we were mature enough and able to avoid it.

Lord Dormand of Easington

I shall be very brief. I was very moved by the speech made by the noble Lord, Lord Pearson. He was absolutely right to say—though not in these exact words—that there is no substitute for direct experience. He can speak from his personal experience, as some of us cannot. Whatever happens in this or any other Bill, I hope that that will not be forgotten.

This Government and previous governments, urged by a number of noble Lords, have made some kind of provision for consultation. They have put on to various bodies and committees people with, if I may use the expression, second-hand experience—the noble Lord at least will know what I mean by that—so that we get as much benefit as we can from that kind of contribution.

I also hope that the Minister will take very careful note—I am sure that he will—of what his noble friend said in his speech regarding mental handicap. Something more than has been done must be done in that field.

I was also pleased that the noble Baroness, Lady Cox, and my noble friend Lord Glenamara brought up the question of choice. I was one of those who succumbed to the original enthusiasm about integration. Obviously there is much to be said for it, and there is no question about that, but right from the beginning I had certain doubts in my mind because one of the most enjoyable experiences I had as an education officer was to visit our special schools—the warm welcome one received, the things that were said and what one observed. What was particularly noticeable, and this applies to every school, was the enthusiasm of head teachers and teachers in such schools. That is not realised except perhaps by those who have direct experience of them.

I therefore hope that the Government will take some notice of the question of choice. I add only one comment. What a parent decides is not necessarily the best choice for the child. In practice it will mean that parents will at least listen to advice from specialists within the educational service, regardless of the type of school. I make that plea, that the Government place more emphasis on that.

I wish to say only two or three brief words in regard to Amendment No. I 99ZA, moved by my noble friend Lord Judd. It is astonishing that in 1993 Parliament is debating the content of this amendment. I recall, as does my noble friend, the Chronically Sick and Disabled Persons Act from our honourable friend Alf Morris in 1970. That was 23 years ago. More recently we had the Act on disability by our honourable friend Tom Clarke. It is astonishing that, after all this time, in education of all fields, an amendment of this kind has to be tabled.

The first worry is that it has to be tabled at all. The second is, why? There are at least two answers, which have perhaps been dealt with. My noble friend said, quite properly, that on the whole headmasters would like to have all the facilities if they can get them. But sometimes they do not think about them—they have so much on their minds and it may not be possible.

The Government might also say that these things are not cheap. That must be considered. Perhaps the Minister will say—and one can understand it—that it is up to the local authority or indeed the head teacher to decide the priorities. I believe one speaker has already said that. That is perfectly understandable. But we say that the time has arrived to change that situation and in those circumstances I hope that the Committee will accept the amendment.

9.15 p.m.

Lord Ponsonby of Shulbrede

I should like to address some comments to Amendment No. 199A in the name of my noble friend Lady David. Before I do so, I will convey to her the sympathies which many Peers have expressed, along with my own.

This has been an extremely interesting and principal debate on the degree of integration. Amendment No. 199A goes perhaps further towards integration than all the other amendments. Perhaps I can quickly mention some figures which show that we are likely to be moving backwards in the integration of children with disabilities into our schools.

Progress with integration since 1983 has been slow. For example, between 1988 and 1991 there was only a 3 per cent. drop in the level of pupils segregated across all English LEAs. When the primary school population was analysed separately it was found that there was a 2 per cent. rise in the placement of that age group in special schools over the same period. That rise is possibly explained by the impact of primary school testing under the national curriculum, which takes up a point made earlier by my noble friend Lord Judd. Mainstream primary schools across the country may be getting rid of their more difficult pupils because they threaten the academic record and ambitions of the school in a rapidly changing market place.

The amendment seeks to place a stronger integration duty on schools. There is a wide variation in the proportion of pupils placed in special schools by different local education authorities. The patchiness of the provision has been found by an Open University report which was found to range between 0.5 per cent. in Barnsley up to about 3 per cent. in Lambeth, Kensington and Chelsea and Hackney.

There have been some emotive terms bandied around in the press in regard to this subject: phrases such as "apartheid", which we heard also this evening; "disability cleansing", which is an even more emotive term, and so on. The noble Baroness, Lady Darcy (de Knayth), spoke to Amendment No. 2O1, which is perhaps more acceptable among the pressure groups which make up this special education consortium. The purpose of that amendment is to ensure that in considering the efficient use of resources account is taken of the benefits to other users of school premises arising from changes made for an individual child. It seems to me that that is the consensus of the interest groups in special educational provision.

The debate has veered between the extreme as put forward in Amendment No. 199A and the views as articulated by the noble Lord, Lord Pearson, and the noble Baroness, Lady Cox, who spoke against the presumption that is generally favoured on both sides of the Chamber.

I refer briefly to the amendment of the noble Lord, Lord Pearson. The amendment is a curious one. The 1981 Act requirement that a child with special educational needs should be educated in a mainstream school unless there are overriding conditions is lifted for a child registered under the Mental Health Act. The force of the amendment appears to be that a child registered under that Act will automatically be educated in a special school unless the parents wish otherwise. I wonder whether the mover is seeking a reversal of the 1981 Act policy. If so, I believe that it goes against the whole thrust of cross-party consensus, which is a preference for integration.

Lord Pearson of Rannoch

I do not know whether the noble Lord wishes me to answer that point at this stage. To be honest, I am not sufficiently familiar with the 1981 Act to know exactly what it does in this area. I merely wish to remove the qualified duty to secure the education of children with special educational needs in ordinary schools when those children are mentally handicapped. I am quite happy to leave the rest as it is. I do not want there to be a presumption either way; I want it to be for parents, their advisers and so on to make the decision case by case, child by child. If there is a presumption against what I say in the 1981 Act then I certainly oppose it.

Lord Ponsonby of Shulbrede

I thank the noble Lord for his clarification. I believe there is a great deal of consensus on the point that parents should have a choice. I see that the noble Lord opposite is nodding. I do not wish to argue particularly in favour of the different degrees of the amendments. I totally agree with the point made by the noble Lord, Lord Addington, that the primary concern must be with the individual child, but I also believe that we should bear in mind the possible insulation of able-bodied children from children with disabilities and the benefits and broadening of the minds of able-bodied children if they were to be educated alongside children with disabilities. Although I agree with the preferences expressed by the noble Lord, Lord Addington, I believe that we ought to be cognisant of the whole picture.

9.30 p.m.

Lord Henley

Like the noble Lord, Lord Ponsonby, I believe that there is much more common ground than we have necessarily given ourselves credit for. The Government are committed to the principle that, wherever possible and when it is right for the child, a child with identified special educational needs should be integrated in mainstream provision. However, that is a general principle. It implies that there will be an important continuing role for special schools, even if the number of pupils attending such schools declines slightly as a higher proportion of children with special needs have those needs met in mainstream education.

The other fundamental factors that are relevant in any debate on integration are the statutory assessment procedures through which the child's needs are precisely identified and parental choice. The Committee will know that the measures included in the Bill are designed to streamline the assessment procedures. At the same time the principal thrust of the Bill is to enable parents of children with a statement of SEN to play a more active role in their children's special education and to give greater weight to their wishes. Parents of children with SEN will in future be able to express a preference for a particular maintained school. I would say to the noble Lord, Lord Glenamara, that in this respect the Bill significantly extends parental choice.

Turning to the amendments before us, I start with Amendment No. 199ZA in the name of the noble Lord, Lord Judd. We believe that the amendment is unnecessary. We are, of course, familiar with the Coopers & Lybrand report to which the noble Lord referred and which, I believe, has inspired the amendment. I do not disagree entirely with some of the principles behind the amendment, but I cannot support it. In the first place, the provisions as drafted would allow an LEA's consideration of these matters to extend to grant-maintained and independent schools where the authority's writ does not run. In any event, as I hope I shall show, it is unnecessary.

That said, I would not want to be in any way dismissive of the Coopers & Lybrand report which contains a great deal of very interesting and important material. However, we have no intention of building a raft of prescriptive legislation on the findings of that report, based as it was on only five local authorities. LEAs have been under a duty to promote integration of children with SEN since the 1981 Act became law. There is now, with the imminent introduction of local management of special schools, an ideal opportunity for LEAs to look into the costs of various forms of integration. There is in fact very little in the Coopers & Lybrand report about LMSS. The need to submit variations to published LMS schemes should now be focusing authorities' attention on the comparative cost of the different forms of provision and the desirability of ensuring that a good spectrum of mainstream schools has access for the disabled. We certainly would not be surprised, therefore, if a substantial amount of relevant information becomes available over the next few months.

Another aspect of access for disabled pupils in mainstream schools is the role of the FAS. When the FAS has been established, it will be able to encourage grant-maintained schools to apply for capital grants for access for the disabled by inviting schools to bid for works in this area. It will be for the FAS to determine the allocations within the budget as a whole. Moreover, grant-maintained schools' success in bidding for capital grant to aid access for the disabled will not prejudice or pre-empt bids for capital expenditure for other purposes. Grant-maintained schools themselves will therefore have every incentive to apply for such grants. We are convinced that, as in many other spheres of educational practice, grant-maintained schools will lead the way by securing excellent facilities for disabled people. Many schools may consider applying for such capital grants as part of their new duty to formulate and publish individual policies for pupils with special needs. As an increasing number of grant-maintained schools are approved, the FAS will be able to maintain a strategic overview of such provision. Thus, well-planned and cost-effective facilities for the disabled should become increasingly available.

Finally, I should remind the Committee that there is a good base from which LEAs, the FAS and schools can move forward. We have given high priority in recent years to building projects necessary to implement approved statutory proposals. Prominent among these have been projects for integration arising from the closure or reorganisation of special schools. LEAs have spent more than £2 billion on capital expenditure on school buildings between 1986–87 and 1989–90. Much of this will have gone on improving the building stock, including through the provision of better access arrangements for disabled children. We estimate that between 1990–91 and 1993–94 LEAs will have spent a further £2.3 billion on their schools. I therefore urge the noble Lord, when the time comes in due course, not to press his amendment. I believe that it is unnecessary.

Turning to the other amendments, I should like to refer first to Amendment No. 199A in the name of the noble Baroness, Lady David. I should like to echo all the expressions of condolence expressed by the Committee. The noble Lord, Lord Ponsonby, spoke to the amendment, as did others. We believe that the amendment is neither necessary nor, for that matter, desirable. As I believe I have made clear, we believe that parents have a major role to play in deciding what should be done for children with special educational needs.

The Bill itself represents a significant advance. Parents will be involved in considering whether children should be integrated into mainstream education or whether they should attend a special school. However, this amendment removes all reference to the wishes of the parents and as such it is wholly unacceptable. It represents an extreme viewpoint by assuming, in effect, that every child can and should be educated in a mainstream school. I believe that, as has been the general feeling expressed in the debate, that virtually all the Committee will agree that this is manifestly not appropriate.

Lord Ponsonby of Shulbrede

I draw the noble Lord's attention to Section 3(2) where it explicitly makes reference to the child's parents in any consultation.

9.30 p.m.

Lord Henley

My understanding is that although there is that reference, it actually plays down the role of the parents. As I said at the beginning, I believe that there is a great deal of consensus in the Committee on this particular issue, or at least more consensus than the man from Mars might assume on first listening to such a debate, if I may put it in those terms. I believe that the noble Lord himself said that this provision is possibly at one end of the spectrum. We believe that it is too far towards that end of it and not necessarily appropriate. It does play down the role of the child's parents and for that reason we cannot find that particular amendment satisfactory.

I now turn to Amendment No. 200 in the name of my noble friend Lord Pearson. As he explained to the Committee, he has very understandable motives and very good reasons for moving that amendment. I believe that his involvement in these matters is appreciated by the Committee and by all Members of the House. We all know that he speaks about these matters with a great deal of authority and personal interest. We all value his contribution to a debate of this nature.

I hope to be able to reassure my noble friend by saying that Clause 152, as drafted, will already deliver what he is seeking in his amendment as regards all children and not just those who have mental illnesses. Subsection (1) of that clause would not apply in the case of any parent who did not want it to. I am advised that that is the effect of the words, unless that is incompatible with the wishes of [the] parent". So if the duty is not compatible with the parents' wishes, then the parents relieve the LEA of that duty. Therefore, I hope that my noble friend will welcome that clarification. Again, when we reach his particular amendment I trust that he will not feel it necessary to press it.

Lord Peston

I am grateful to the noble Lord for giving way. Perhaps I may ask for clarification. It is very rare, and almost the first time in my experience of the House, that I find the arguments of the noble Lord, Lord Pearson, completely compelling. Can the noble Lord assure the Committee that the wording in the Bill—namely, "unless that is incompatible"—means exactly the same as the words in the amendment of the noble Lord, Lord Pearson, which seem to be much clearer? I refer to the phrase, Unless the consent of his parents has been obtained". As someone who believes that he understands the English language, the words do not mean the same to me. I am willing to accept the statement of the noble Lord, Lord Henley, that he is absolutely certain that they mean the same, but what the noble Lord, Lord Pearson, wants should be the case.

Lord Henley

The noble Lord is quite right to interrupt me on that. I very carefully said that I am advised that that is the case. In the light of the recent court case, Pepper v. Hurt which went to the Judicial Committee of the House, it is very important that I know exactly what I am saying from the Dispatch Box. I reassure the noble Lord that that is my understanding. If I am wrong—and there is every opportunity that I am—I shall certainly write to the noble Lord after we have had another look at it. I shall also write to my noble friend Lord Pearson.

I was trying to give an assurance that the wording means exactly that. It is quite important that we get this matter right, but that is my understanding of the meaning of the words. I have forgotten most of the law that I ever knew, but I do not know about the state of the noble Lord's knowledge of the law.

Before I turn to Amendment No. 201, perhaps I may deal with one particular point raised by the noble Baroness whose amendment it is; namely, as regards statistics and whether we are collecting them on the number of children without statements in special schools. This really relates, I suppose, to Amendment No. 203, but the paper just happens to be here. I can assure the noble Baroness that we are, in fact, collecting such statistics on a national basis and we are in contact with several authorities with large numbers of unstatemented children in special schools. We are certainly monitoring the position closely and in due course I hope that we shall be able to provide the noble Baroness with more information.

Turning to her first amendment, Amendment No. 201, I obviously appreciate the motives which have led the noble Baroness to sponsor this amendment and particularly the desire to ensure that authorities consider the case, for example, for improved access for disabled pupils in mainstream schools, when carrying out their qualified duty to secure education of children with special needs in mainstream schools. But again I must regard the text of such an amendment as misconceived and its substance, in fact, as unnecessary.

The Government also have qualms about the necessity for an amendment of this kind. As I think I have made clear, we already have good policies—which have wide acceptance—on the matter of access for disabled pupils. If the noble Baroness will bear with me, I should like to say a little about this. I believe that within any area—but not necessarily a single authority—there should be at least one reasonably accessible maintained mainstream school with good facilities for disabled pupils. However, not every school needs to be equipped in this way; in metropolitan areas with a high population density there may be less need than in rural areas where choice of school is in any event obviously and naturally much more restricted. But bearing in mind the balance between efficient use of resources—I think this is very important—and increasing parental choice, the Government consider that a good proportion of schools should be accessible to such pupils. Measures are in place to ensure that this is occurring and will continue to occur.

Before I move on to Amendment No. 204 in the name of my noble friend Lady Faithfull and the noble Baroness, Lady Warnock, the noble Baroness, Lady Masham, asked me why children have to have statements. Children will have statements when the local education authorities decide that they must intervene to arrange the special education that those children need because they need more than their school can provide alone. The code of practice, which my noble friend Lady Blatch dealt with earlier, will ensure a much greater degree of objectivity and consistency in the LEAs' decisions. Turning to my—

Baroness Masham of Ilton

Just to clarify that—what I asked the Minister was why some children had statements and other children did not have statements when the provisions meant that they should have statements.

Lord Henley

If the noble Baroness is dealing with the question which the amendment itself is about (Amendment No. 203), in effect, why are there a number of children in—yes, I have got the right one—these special schools who are unstatemented, I am coming on to that. If the noble Baroness will bear with me, I will address those points.

I thank my noble friend for moving this amendment. I think this is a very important issue. I would certainly not wish her to think that we have not considered this matter carefully—or indeed that it has not been considered in the past. Again, I am sympathetic to some of the general principles behind her amendment, but again I have to say that I do not think that it is necessary and I do not think that it is necessarily appropriate to have such a measure enshrined in primary legislation.

The Government have an expectation that children in special schools should normally have a statement, and this has been made clear in the formal guidance which we have issued on this matter in Circular 22/89, which was quoted by my noble friend, that The Secretary of State would expect that children in special schools would normally be afforded the protection of a statement". In practice, a minority of special school children will be undergoing assessment. This seems to be a reasonable position, assuming that the placement is provisional and has been agreed with parents.

However, it is another matter as to whether special schools should be statutorily prevented from taking any pupil without a statement and who was not undergoing assessment. There are certain, albeit relatively rare, instances when such a placement could be entirely justified. We consider therefore on balance that this is a matter for firm guidance (which could issue within a departmental circular in the wake of the Bill) rather than primary legislation.

The noble Baroness referred to research from the CSIE. We do not believe that the picture is quite as black as has sometimes been painted by that report. We have considered that report carefully, and we are also aware of more recent information from each of the 15 authorities which the report identified as having an unduly high proportion of children without statements in special schools. I am satisfied that in the great majority of cases these authorities have made substantial progress since January 1991 when the data in the CSIE report was collected. In those few authorities where there is still some cause for concern, we have asked officials in the department to monitor the position to ascertain just what progress is being made.

I apologise to the Committee for taking up a great deal of time in responding, but these are important points and it is vital that the Committee address them. I end by repeating the spirit of what the noble Lord, Lord Ponsonby, said, and what I opened with at the beginning. There is considerably more agreement in these matters than we necessarily give ourselves credit for. I hope that in that conciliatory tone the noble Lord, Lord Judd, will not feel it necessary to press his amendment, and that the other noble Lords and noble Baronesses with amendments in this group will not feel it necessary to press them when they come up in due time.

Lord Glenamara

Could not the noble Lord give any reply to my plea that the parents who want integration should be given the same absolute right as the parents who want special schools for their children?

Lord Henley

They have a preference, and there is a presumption in favour of that preference. I do not think that one can ever talk about an absolute right in the way that the noble Lord is talking about. We believe that this Bill significantly extends parental rights, but it cannot go as far as the absolute extent that the noble Lord seeks.

Lord Glenamara

I wonder why there is a right in the case of the parents who want a special school and not in the other?

Baroness Faithfull

I must apologise. My noble friend rose before I managed to speak on Amendment No. 203. Many of us have come across parents who have wanted their children to be integrated, wanted them to go to the local school, and been told that they cannot. The amendment that I have put down says that parents must be told why their children cannot go to the local school if the statement is such as to make it clear to the parents that a local school would not meet the needs of their children.

I have had representations from about six parents who have been told that their children cannot go to these mainstream schools, but they have been given no reason why they should not go. Parents are distressed about this because they do not think that it is because of the child's state, and that it has been statemented to go to a special school, but simply because there are not the facilities. This ought to be addressed.

Lord Henley

My noble friend is under a misapprehension. My noble friend is talking about a situation that exists at present. Under the provisions in this Bill, parents would be told, and would have a right of challenge, if what my noble friend said occurred. In other words, if a statement child could not go to a school of their choice.

9.45 p.m.

Lord Judd

I genuinely want to thank the Minister for his sensitive and courteous reply. I do not want in any way to embarrass him, but whenever I hear him speak at the Dispatch Box, I feel that the cause of reasonable pluralistic democracy is not lost, and that it is possible to examine subjects constructively together whatever our differences.

The Minister referred to how the proverbial man from Mars might see the situation here. Whether it was him or the woman from Venus, the conclusion would be that there was a great deal of intellectual meeting of minds on the issue; but what I believe they would find amazing is that after the intellectual meeting of minds, the logical action was not followed through. They would go back and say, "It seems to be a very nice political system they have down there; they talk at great length, late into the night; they find a great deal about which they agree, but they do not actually do anything about it". That is the message that would be taken back to Mars.

I wish to make a couple of practical points. The Minister referred to the evidence upon which the report was based. There is a slight problem because I believe that he has been speaking about the first report by Coopers & Lybrand, commissioned by the Spastics Society and the NUT. I was speaking not just about that report, but about the report published today which takes the matter further. The Minister may not have been briefed about that report. What is interesting is that the evidence has been based on replies by 2,500 schools and not just by local authorities. That is an important point. The other point we must realise is that in today's publication Within Reach (the school survey) we see clearly that the problem is that no one knows how suitable our schools are for disabled children. The information is not available.

The amendment provides that an LEA shall determine accessibility—that is, undertake access audits to provide a local and national picture. It further provides: The Secretary of State shall issue … guidance". That brings me to the point that here again we are up against the issue of whether we are indulging in a genuine moral commitment to the principle of choice, as distinct from ensuring that meaningful choice is available. What has been said from several quarters in the debate is that the condition of so many schools means that choice does not exist. If, therefore, we are to have a free choice, and everyone favours a free choice, there must be a meaningful opportunity to make a choice, in terms of the provision that has been made, not just the intellectual possibility to do so. That is where we remain unconvinced.

It would be helpful if we could have an assurance from the Government that if by any chance Amendment No. 199A is lost the Government will ensure that somewhere in the Bill there is a provision that from 1993 LEAs should begin to plan for integration. That point does not seem to be firmly and clearly established. It is the point that we had on the last debate: we are putting the poor old LEAs into the position of having the moral public responsibility without power and effectiveness. Power and effectiveness start with reliable information. All that we are asking for at this juncture is reliable information. The hour is late, as I have said before in our proceedings; I am a realist, and in that sense, I shall not pursue the amendment tonight.

Lord Pearson of Rannoch

I wish to speak to Amendment No. 200, although I do not know whether it is appropriate to do so now. I wish to thank all noble Lords who spoke on the amendment. I thank the noble Lord, Lord Glenamara, for his understanding of what I had to say, and for, if not necessarily his agreement, his acquiescence in the points that I made.

I thank also the noble Lord, Lord Dormand of Easington, for his kind words. We drew swords the other evening over the quality of some LEAs, although I do not think that we actually crossed them. His remarks this evening demonstrate his genuine commitment to the good of all children in our state system of education. I thank the noble Lord, Lord Ponsonby, for his remarks. He mentioned the advantage which normal children receive from association with handicapped children, and of course I accept that. I imagine that it is one of the main themes which underlies the whole integration policy towards the civilisation of our society in the future, and the trend away from locking people up and excluding them; people who are perhaps unpleasant and frightening at first sight. I understand that completely.

It is a question of balance and I think it is wrong if the handicapped suffer from that association. My contention is that the mentally handicapped are more likely to do so under the wording of Clause 152 as presently drafted than is appropriate.

Finally, I have to say that I am really extremely grateful to the noble Lord, Lord Peston, for his intervention. I am afraid that I have to agree with what he said. I think that the wording of Clause 152 as drafted is not acceptable, as the Minister felt, because it clearly says that: the child is educated in a school which is not a special school unless that is incompatible with the wishes of his parent". Incidentally, I do not know why "parent" has suddenly become singular in this part of the Bill and not "parents"—two parents. But that is another matter.

The point is that this really is a hurdle that the parents of a handicapped child have to jump. I had to jump it myself. I know the pressures that come against one from the social workers, who simply cannot understand that you do not want your child in a normal school, and from the Association of Down's Syndrome Parents, which is also rather of that frame of mind. Therefore, I feel that this is an unacceptable expression and I think that my amendment, although it may not be perfect, does create a balance towards the mentally handicapped children at least. I certainly should not dream of testing the opinion of the Committee at this hour of the evening but if my noble friend can come back at the next stage with more of a compromise in that regard, I should be very pleased.

Amendment, by leave, withdrawn.

Clause 152 [Qualified duty to secure education of children with special educational needs in ordinary schools]:

[Amendment Nos. 199A to 201 not moved.]

Baroness Darcy (de Knayth) moved Amendment No. 202: Page 91, line 35, at end insert: ("(3) Where—

1. (a) a statement is made under section 159 of this Act, and
2. (b) the statement names a special school as the type of school in which the child is to be educated

the statement shall specify which of the conditions set out under section 152 cannot be satisfied and why.").

The noble Baroness said: I asked for this amendment to be grouped separately from the previous group of amendments because basically it is not an integration question but rather a question of information to parents. In view of the other remarks made about large groupings, I should say that I have always found the Government Whips' Office extremely helpful about the grouping of amendments.

An LEA has a duty to integrate a child with special needs unless certain conditions cannot be fulfilled. That is still the case under the new Bill. In order for parents to be able to appeal against an LEA's decision that conditions permitting integration cannot be met in the case of their child, they need to know which conditions cannot be met and why. Without that information, it is extremely difficult for them to prepare a challenge to the LEA's decision.

The Audit Commission/HMI report Getting in on the Act revealed that many parents who are seeking an integrated placement for their child are being denied one. Sometimes parents are told that proper provision cannot be made in a mainstream school or that to make such provision available would not represent an efficient use of resources. Sometimes parents are given no explanation. For example, Vincent's mother was told by the LEA that her son could not be integrated because his needs could not be provided for in a mainstream school. It emerged later, however, that no school had been approached as part of Vincent's assessment. In fact, the LEA had taken an early decision that whatever school Vincent attended, the LEA would need to provide full-time welfare support for him. But no mainstream school was approached and given that information before being asked whether it could accommodate Vincent and provide for his special needs. The only school which was approached was not told of the provision to be made by the LEA under Vincent's statement, so, not unnaturally, it decided to say that it could not meet his needs.

This amendment would require LEAs to set out on the statement which conditions permitting integration it considers cannot be met in an individual child's case and give the reasons why. That would help parents to decide whether they should or should not appeal against the LEA's decision. Moreover, if they do decide to appeal, it will let them know exactly what it is that they are appealing against. I should like to emphasise that this is not a challenge to the power of the LEA to make a decision as to whether the conditions permitting integration can be met; the amendment simply requires LEAs to be explicit about the reasoning behind their decision on the point. I beg to move.

Lord Addington

I should briefly like to express my support for the amendment. As information is required by everyone to make a logical decision, it would seem that LEAs should not be excluded.

Lord Henley

In moving the amendment, I suspect that the noble Baroness spoke about the state of affairs at present. I must stress that the Bill takes us somewhat further. I also suspect that her amendment wants to make LEAs justify on the face of a child's statement their decision to specify a special school. LEAs would not be similarly required to justify naming an ordinary school.

The Government, on the other hand, believe that LEAs should always discuss with parents all aspects of a statement. Those discussions should include the name of the appropriate school, be it a special school or an ordinary school. We are confident, too, that the Bill makes full provision to that effect. I hope the Baroness—I am sure that she will not wish to press it—will feel able to withdraw the amendment.

Obviously, the LEA must explain its decisions to parents. Indeed, parents should have been closely involved throughout the process of assessing the child and drafting the statement. We have already issued clear advice to that effect. Circular 22/89 says: The relations between professional advisors and parents during the process of assessment are of crucial importance. Parents should be encouraged to feel that they are partners in this process". Further guidance issued under the Bill will very much underline the importance of that partnership.

Beyond that, the Bill gives parents an important new right —to state a preference for their child's school. The statement will go to parents in draft form. They will have explicit rights to make representations to the LEA and to hold meetings with the LEA. There will, therefore, be ample opportunity for parents and the authority to discuss the name of the school which should appear on the statement. When parents state a preference, LEAs will be bound to abide by that preference so long as certain reasonable conditions are met.

Our measures provide for full parental participation in the process of making an assessment, writing a statement and naming a school. There must be a full exchange of views between parents and authorities. The tribunal will stand behind that process: if the parent is dissatisfied, the tribunal will consider both sides of the argument. I hope, therefore, that the noble Baroness will feel able to withdraw the amendment.

Baroness Darcy (de Knayth)

I should like, first, to thank the noble Lord, Lord Addington, for his support and the Minister for his full reply. I shall read carefully what the Minister said and think about the matter. I am not sure that he has totally reassured me. I may return to the matter at a later stage or I may have a word with the Minister. But, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Faithfull had given notice of her intention to move Amendment No. 203: Page 91, line 35, at end insert: ("(3) No child shall be placed in a school which is a special school unless—

1. (a) that school is a hospital school, or
2. (b) the local education authority maintains a statement under section 159 of this Act naming this type of school; or
3. (c) the local education authority has initiated an assessment of his special educational needs under section 158(3) of this Act and has the written consent of the child's parents to placement in a special school.").

The noble Baroness said: I have already spoken to this amendment. I do not propose to move it.

[Amendment No. 203 not moved.]

Clause 152 agreed to.

Clause 153 [Duties of governing body etc. in relation to pupils with special educational needs at ordinary schools]:

[Amendments Nos. 204 and 205 not moved.]

Baroness Faithfull moved Amendment No. 206: Page 92, line 26, after ("needs;") insert ("and shall in particular include information as to the admissions policy of the school on children under the age of five where such children are admitted to the school;").

The noble Baroness said: The purpose of the amendment is to ensure that the admissions policy for under fives at a primary school is published as part of the school's policy for pupils with special educational needs. Admission to nursery provision may be crucial in the assessment and in the help given to young children under five with special educational needs.

Many primary schools, understandably, give priority to children in their own nursery class when it comes to admission to the reception class. That is entirely desirable in terms of continuity for the individual child. However, it means that any policy on admission to nursery provision will also have a knock-on effect on the school's admissions policy and practice for the reception class for rising fives.

It is therefore important that in publishing the school's policy on special educational needs (which we understand from the announcement made by the Minister, Mr. Forth, in another place on January 7th will include the school's admissions policy) the school is required to set out in addition any admissions policy relating to nursery provision at that particular school. Mr. Forth said: I am therefore proposing to seek an amendment to the Education Bill which would put a statutory duty on each school to draw up, publish and report on its policy towards all its pupils who have special educational needs. This requirement would strengthen the existing safeguards within the Bill, particularly Clause 144 which requires governors 'to use their best endeavours' to meet pupils' special needs. This policy will make all schools more accountable to parents and Inspectors will have regard to schools' SEN policies and their effectiveness when judging schools' performance. It will be of direct benefit to all pupils with special needs".

I beg to move.

Lord Judd

We on these Benches applaud this amendment and fully support it.

10 p.m.

The Earl of Swinton

It only happens once in a blue moon that one lands lucky in this Chamber. Tonight I feel as though I have backed a 33 to one winner because I find my Amendment No. 226 grouped with this amendment. In the normal state of affairs I would have had to wait until some even more unearthly hour to speak to my amendment but I have been given a chance to speak to it now. I do not believe my Amendment No. 226 has anything on earth to do with the amendment of my noble friend Lady Faithfull. However, I do not wish to lose the opportunity of having a go at it now.

I welcome very much Clause 165 whereby parents of under-two-year-olds can agree to have their children assessed and then statemented. That is an excellent provision. However, Clause 161, which gives a right of appeal to parents who disagree with statements, does not cover the position of the under-two-year-olds. My amendment would bring those children into line with the other children and give them the same right of appeal.

Members of the Committee may well feel there can be no question of educating under-two-year-olds and that I must be talking about a health provision. In fact that is not the case. My noble friend Lord Pearson spoke on this issue in the previous debate. I am assured that children with Down's syndrome can benefit greatly from early education at the age of about 18 months onwards. They benefit from education conducted through water and sound methods. That form of education enables those children to improve enormously in their early years. If a child under two receives a statement, that statement will continue long after the child's second birthday and may have a potential influence on the rest of that child's education. Therefore, it is only right that parents of children under two years who disagree with the statement should have the same right of appeal as parents of older children.

Lord Addington

I support the amendment of the noble Baroness, Lady Faithfull.

Lord Swinfen

I strongly support both these amendments. It is well known that it is beneficial to children who do not have special needs to start education as early as possible. I believe it is even more beneficial to children with special needs to start education as early as possible.

Lord Henley

I am grateful that my noble friend Lord Swinton is grateful that these two amendments have been grouped. I can give him no particular explanation as to why they were or were not grouped, and I appreciate they are on slightly distinct subjects. But if it makes life easier for my noble friend, I am sure he will be happy.

I start with the amendment in the name of my noble friend Lady Faithfull and the noble Baroness, Lady Warnock. It calls for schools' annual reports to contain information on their admission policies for children under five where such children are admitted to the schools concerned.

The Bill already makes the important provision that the annual reports of all maintained schools should include a report about the implementation of the governing bodies' policy for children with special educational needs. The annual report will therefore provide a significant body of information from which parents and others with interest in this matter will benefit. We shall make regulations which will govern the issues which schools' SEN policies must address. We have in mind such matters as the number of children with special educational needs and their age range, any particular specialisms offered, staffing provision and expertise, in-service training policy and links to other schools and specialist help. We shall ensure that schools with provision for children under five will report annually to parents on their policies for those children. We shall expect schools with provision for the under fives to have clear policies for identifying, assessing, teaching and monitoring the progress of all children under five who have or may have special educational needs.

We also need to consider the information available to parents before their child gains admission to a school. Section 8 of the 1980 Act sets out a full regime requiring prospectuses to be produced by or on behalf of the schools. It is clearly sensible practice for such prospectuses to discuss provision for children under five where that provision exists. I am not aware of any widespread absence of such information. We must, however, remember that, apart from provision for children with statements of special educational needs, provision for the under fives is discretionary.

Earlier this year the department consulted widely on the information which should, by law, be included in schools' prospectuses and annual reports. Among the issues discussed in that consultation was the question of schools' admission policies. We shall be making the relevant regulations next month. It would be sensible if, in the light of this debate and that consultation, we were to consider further the question of whether schools which make provision for the under fives should in their prospectuses state their admissions policies for those children. In doing so, we should have to bear in mind that the full statutory regime governing admissions does not and cannot apply to children under five. Nonetheless, I believe that the question is one which merits further consideration. I undertake to give it that consideration.

I turn now to the amendment in the name of my noble friend Lord Swinton. I have to say that it seems inappropriate. While under the Bill, as under the Education Act 1981, children under two can be assessed and statemented, the process of assessing and statementing the under twos may be different from that which applies to children aged two and over. We believe that the issuing of statements for such children is rightly a discretionary matter. The formal rights of appeal relate specifically to the assessing and statementing processes for children aged two and over.

We believe that it is essential to retain a degree of flexibility so far as concerns children under two. To insist on applying the same educational assessment and statementing procedures to children under two as apply to older children, with all the attendant appeals procedures, would in the Government's view be inappropriate. We do, however, consider it important that the conduct of assessments and the making of statements should meet the same standards as apply to the statutory processes. I hope, therefore, that my noble friend will accept that explanation as to why I do not believe that his amendment is appropriate.

I hope that with the assurance that I have given to my noble friend Lady Faithfull she will feel able to withdraw her amendment.

Baroness Faithfull

I thank my noble friend for his reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 153 agreed to.

[Amendment No. 206ZA not moved.]

Clause 154 [Provision of SEN assistance]:

Baroness Blatch moved Amendment No. 206A: Page 92, line 32, leave out from ("assisting") to first ("in") in line 33 and insert: ("( ) the governing bodies of county, voluntary or grant-maintained schools").

The noble Baroness said: Amendments Nos. 206A and 207A are grouped with Amendments Nos. 207 and 208. In speaking to my amendments I shall also address those latter amendments.

The amendments I have put before the Committee are technical amendments. Amendment No. 206A reflects the fact that the governing bodies of maintained and grant-maintained special schools do not fall under the duty in Clause 153(1) (a). Clause 172 defines special schools, including maintained and grant-maintained special schools, as being schools specially organised to make special educational provision. It is therefore not necessary to make governing bodies of such schools subject to the duty in Clause 153(1) (a).

However, as I have said, we recognise that the governing bodies of maintained and grant-maintained special schools may wish to use the services supplied by LEAs to mainstream maintained and self-governing grant-maintained schools. Therefore, Amendment No. 207A would enable local authorities to supply such services to them. I therefore ask the Committee to accept the amendments. I beg to move.

Lord Judd

I seek one point of clarification from the Minister. The amendment does not broaden the clause far enough to include independent special schools; but perhaps I have that wrong. Thus, if a local authority reaches the margin of its capacity for the purposes of the Local Authorities (Goods and Services) Act 1970, it would be allowed to continue trading with grant-maintained schools under the provision but would have to cease any trading activities in respect of independent special schools. Will the Minister reassure us?

Baroness Blatch

I am subject to correction, but my understanding is that a local authority will not be able to trade with schools beyond its own area of influence, and certainly not with independent schools. I believe that I am right. If I am wrong, I shall return to it or write to the noble Lord.

On Question, amendment agreed to.

Baroness Warnock moved Amendment No. 207: Page 92, line 34, after ("153(1) (a)") insert ("and (c)").

The noble Baroness said: The amendment is intended simply to extend the possibility of a service being provided with regard to teacher training. Schools might wish to avail themselves of any training which was specifically designed to inform and enlighten teachers in mainstream schools about the general needs of children with special need. It is not a radical amendment but it might be useful in certain circumstances. I beg to move.

Lord Judd

We strongly support the amendment.

Baroness Blatch

Perhaps the noble Baroness will accept that I address Amendments Nos. 207 and 208 in my response.

Clause 154 provides for local education authorities to supply goods and services to governing bodies so that, if a pupil has special educational needs, the special education provision which his learning difficulty calls for can be secured. We recognise and endorse the importance of identification and appropriate provision for special needs. As the code of practice will say, appropriate provision cannot be made unless special educational needs are identified, preferably as early as possible, and the child's needs are properly assessed.

I very much doubt whether local authorities could provide services in relation to Clause 154(1) (c), which deals with teachers' awareness of the importance of identification and provision for children with special educational needs, that they could not also provide under Clause 154(1) (a), which deals with governors using their best endeavours in making provision for such children. As I said, identification is a necessary preliminary to provision. I therefore believe the amendment to be unnecessary.

I cannot endorse Amendment No. 208. It seeks to place local authorities under a new duty to ensure the availability of special educational need support services. I do not believe that such a duty is necessary or appropriate. Local education authorities must, and indeed will, maintain support services, or retain access to such services, to allow them to fulfil their duty towards children who require or may require statements. Staff employed in those services will be available to all maintained schools in the area to work with pupils with statements and those without. But it would be up to schools to decide whether they wish to retain access to those services to assist them or whether they wish to secure services from an alternative source—a voluntary body, for example, such as the Royal National Institute for the Blind.

If they are to abide by the code of practice, schools will need to use support services. But they will not always need to use the local authority support services. If the LEA was obliged to provide support services in all cases, that would discourage the growth of alternative suppliers. It cannot be the noble Baroness's intention to stifle the choice available to governing bodies. Therefore, I hope that the amendment will not be pressed.

Baroness Warnock

That seems an extraordinarily wasteful reply in that there will be a great need for increased teacher training—a factor hardly mentioned in the Bill—if all the benefits for children with special needs are to result. I refer particularly to what is generally known as a whole school policy, without which it is impossible for children with special needs in mainstream schools to obtain a proper education. That requires a great deal of education of teachers.

It defeats me to see why, if the local education authority sets up that kind of arrangement, it should not be possible to supply the use of such arrangements for the governors of grant-maintained schools. I simply fail to understand that. Perhaps I have just not grasped the difficulty. At any rate, I do not think the point is worth pursuing any further. If I have completely misunderstood, perhaps the Minister will be kind enough to put me right. In the meantime, I withdraw the amendment.

Amendment, by leave, withdrawn.

10.15 p.m.

Baroness Blatch moved Amendment No. 207A: Page 92, line 35, after ("Act") insert ("or ( ) the governing bodies of maintained or grant-maintained special schools in their or any other area in the performance of the governing bodies' duties").

On Question, amendment agreed to.

[Amendment No. 208 not moved.]

Clause 154, as amended, agreed to.

Clause 155 [Special educational provision otherwise than in schools]:

Lord Northbourne moved Amendment No. 208A: Page 92, line 46, leave out ("may") and insert ("shall").

The noble Lord said: This small amendment arises from the fact that Clause 155 provides for local authorities to look after children outside school who cannot be looked after in school. It simply says that the local authority "may" arrange for provision. My view is that if the local authority "may", the implication is that the local authority also "may not", and that would seem to be totally unacceptable. Unless the duty is mandatory, what will happen is that if the local authority is strapped for money it will cut back on its optional expenditure. That is what they always do and what in practice they are doing at this time. I know of two children who, for one reason or another, cannot go to school who are receiving only two hours a week of out-of-school tuition. I think that is the sort of pattern which will emerge. I beg to move.

Baroness Young

As Amendments Nos. 209 and 210 are grouped with this amendment, I should like to mention them on behalf of my noble friend. Lord Elton.

Lord Ponsonby of Shulbrede

Perhaps I may speak briefly to the two amendments in the name of the noble Lord, Lord Elton, Amendments Nos. 209 and 210. They seem to ensure that pupils who are placed in units or who receive tuition at their home as specified in their statement are returned to schools as soon as possible.

For example, a pupil might be excluded from the mainstream school or special school and have a statement, or a pupil might be between schools and under full assessment. The amendments of the noble Lord, Lord Elton, seem to ensure that LEAs are pressed to find provision which offers a balanced and broadly based curriculum as soon as possible. This seems to me to be a positive amendment. It seems to stop children, especially children with emotional and behavioural difficulties, falling through the net. On this side of the Chamber we are happy to support the amendments.

Lord Addington

I rise to speak very briefly in support of these amendments. This seems a very reasonable and sensible suggestion.

Baroness Blatch

As I flagged earlier today, we have tabled amendments for debate next week as a result of which local education authorities will have a duty to provide education otherwise for pupils who are out of school for whatever reason. Clause 155 has a relation to those amendments. But it must also be seen in the context of Part III as a whole. In particular. it must be seen in the context of the rights that Part III accords to parents of children with statements.

Thus, if a local education authority were to conclude that, for a child with a statement, education otherwise than at school would be appropriate, that local education authority must state that fact in the child's statement and arrange the provision. However, the local education authority's conclusion is subject to appeal. In certain circumstances, the special educational needs tribunal, following an appeal from the child's parents, could order the local education authority to amend the statement and provide education in school. Had Clause 155 imposed a duty on local authorities, the local education authority in question would have been faced with two conflicting duties: to educate the child otherwise and to abide by the determination of the special needs tribunal that the child should be educated in school. We believe that the determination of the special needs tribunal should take priority. After all, it is the tribunal that has heard the case from all sides. I hope that the noble Lord, Lord Northbourne, will appreciate that Clause 155 is cast in permissive terms and therefore will not press his amendment.

I believe it is relevant to refer to Amendments Nos. 209 and 210 in the name of my noble friend Lord Elton and spoken to by my noble friend Lady Young. The concern here and the concern of the noble Lord, Lord Ponsonby, is about reintegration, which is a very important aspect of education. Education otherwise guidance is separate from the code of practice: but the education otherwise guidance will embody the principle that children should return at the earliest opportunity to a mainstream school.

Lord Northbourne

I believe that I heard the noble Baroness say that there are other amendments coming up which will provide for the mandatory education of those children, if that is what the appeal committee decides. On those grounds I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 209 and 210 not moved.]

Clause 155 agreed to.

Clause 156 agreed to.

Clause 157 [General duty of local education authority towards children for whom they are responsible]:

Baroness Blatch moved Amendment No. 210A: Page 93, line 22, leave out ("under this Part of this Act").

The noble Baroness said: This amendment is linked with Amendments Nos. 211, 212, 213 and 214. I shall speak to those amendments tabled in my name.

Clause 157 defines the general duty on local education authorities towards those children for whom they are responsible. It is an important clause as it is the bedrock of the subsequent duties to assess and, where necessary, determine the special education provision to meet a child's special educational needs.

The Bill currently requires local education authorities to use only their powers under Part III of the Bill to identify the children for whom they are responsible who require a statement of special educational needs. We recognise, however, that there are other powers, elsewhere in the Bill and in existing legislation which local authorities might need to use if they are to be certain to identify all such children. For example, Clause 146(4) of the Bill gives local authorities the power to seek information from self-governing grant-maintained schools and maintained schools about children for whom they are responsible, placing duties on the governing bodies to provide that information. Similarly the 1986 Act enables local authorities to seek information from the governing bodies of local authority maintained schools.

I have therefore tabled this amendment in order to enable local authorities to use any such other powers as they have in order to fulfil their responsibilities towards children with special educational needs who may require a statement. I believe that the Committee will welcome this amendment as it gives teeth to the authority's use of all its powers to identify those children with special educational needs who might need the authority's intervention.

Amendments Nos. 213 and 214 would extend the duty to identify all pupils who live in the local authority's area, who are being educated at the state's expense, wherever they may be, and who require statements of special educational needs. It would apply whether the pupil was in a school maintained by that authority or by another authority, a grant-maintained school or a grant-maintained special school within and beyond the authority's boundaries or a non-maintained or independent school when that placement was funded by either the local authority or the funding agency.

All parents now have a greater choice of school for their child. The amendments before the Committee are designed to ensure that the authority has an unqualified responsibility to identify all pupils who require statements when they are in maintained schools and placed in non-maintained and independent schools by the funding agency or the local authority. I believe that that is a sensible safeguard to ensure that no child slips through the net. Local authorities have a range of means in the Bill and elsewhere to help them fulfil their duty to identify the pupils who may need a statement. We have debated the clauses which underpin the exchange of information between the funding agency and the local authority, notably Clauses 6 and 18. Governors of grant-maintained schools also have a duty under Clause 146 to give information to any LEA in respect of a pupil towards whom the LEA has a responsibility.

I commend these amendments to the Committee. I beg to move.

Lord Judd

In so far as Amendment No. 210A makes it explicit that the naming of a grant-maintained special school in a statement makes it obligatory for the governors to admit the child to the school, we find that unexceptionable. But I hope the noble Baroness will forgive me for raising again a slight niggle. We believe that there remains a lack of clarity regarding occasions when "grant-maintained school" is a generic term which includes grant-maintained special schools and when it is assumed to exclude them. It would be helpful if the Minister could clarify that point.

Baroness Blatch

First, we do not yet have grant-maintained special schools. I look forward to the noble Lord's support for the notion that we should have them. I understand that grant-maintained schools do not subsume grant-maintained special schools. As I said, special schools are likely to be occupied mostly by children already with statements.

Lord Jenkin of Roding

I should like to put a question to my noble friend. Amendment No. 214, with the new substitute paragraph (b), refers to schools which are not maintained, grant-maintained or grant-maintained special schools. It is a question of assessment. If there is an obligation on the local authority to assess pupils who are in the independent sector, is it right that there is no obligation to continue the education of the children in that independent sector? It is a simple question of assessment.

There are amendments tabled to a later clause, to which I hope to speak, which will make the position absolutely clear. However, it may be helpful, in setting the context for that later debate, if my noble friend can explain what precisely is the ambit of her Amendment No. 214 and how far it extends in imposing duties on local authorities in relation to the non-maintained sector.

Lord Northbourne

Perhaps I can expand on that question and ask the noble Baroness what happens in regard to a child who is not at school at all. Sometimes, particularly in the case of children with special needs, there may be a situation where a mother has kept the child at home and not sent him to school.

Baroness Blatch

My understanding is that the responsibility is to the child. Amendment No. 214 includes children among those people for whom the LEA was responsible. Therefore, it includes the children for whom the LEA was responsible who were in a school that was not a maintained, grant-maintained or grant-maintained special school at the expense of the LEA or the funding agency.

Lord Swinfen

Grouped with Amendment No. 210A is Amendment No. 212 and perhaps I may say a word on that. However, the noble Lord, Lord Redesdale, whose name is attached to the amendment, may wish to speak first.

Lord Redesdale

I thank the noble Lord. I should like to speak to Amendment No. 212, having worked in a voluntary capacity at a special education school for children afflicted with hearing disabilities. It is important that the child's needs are taken into account, as the amendment suggests. The Minister may think it is labouring the point, but it is important to include it in the Bill.

Lord Swinfen

I should like to follow the noble Lord, Lord Redesdale, also in connection with children who are deaf. I have been briefed on the matter by Deaf Accord. The emphasis put on ascertaining the wishes of the child in the Children Act, as the Committee will know, was widely welcomed. Deaf Accord was particularly pleased that the guidance to the Act stressed the need to provide communication support if the child was deaf and his first or preferred language was sign language.

Deaf Accord believes that it is essential that deaf children are encouraged to take an active part in educational decisions that will have such a far-reaching effect on their lives. There may be instances where the wishes of the child and its parents, over the preferred method of communication or the choice of a residential placement, are in conflict. We believe that the wishes of the older child should be taken into account in such cases.

Many local education authorities are beginning to incorporate the principles of good practice enshrined in the Children Act. This amendment is necessary to ensure that the two pieces of important legislation relating to children do not have differing views with regard to taking into account their wishes and feelings.

10.30 p.m.

Baroness Blatch

Perhaps I may ask whether anyone wishes to speak to Amendment No.211 or whether it has been withdrawn.

Baroness Warnock

I wish to speak to Amendment No.211. I should like to make one final appeal for clarity, which is the point of the amendment. The amendment proposes that the clause should read: (2) This subsection applies to a child if—(a) he has special educational needs or (b) he has special educational needs and it is necessary for the authority to determine the special educational provision … The long-winded phrase in paragraph (b) has come to be referred to as a statement. I wanted to explore whether the local education authority had a duty to ascertain the needs of children, whether those children had statements or were definitely going to have them or whether they had special educational needs and did not have statements. I know that this subject has come up again and again but I still find myself unclear about the extent to which local authorities are to be responsible for children with special needs who are in a grant-maintained, voluntary aided or any kind of school, excluding a local authority school.

It could be argued that the wording of the clause is such that the local authority is shown to be responsible because there may be children who are brought to its attention as probably having special educational needs. But it seems to me that that is a rather backhanded way to ensure that the local education authority has responsibility for children with special needs who have been assessed and identified but who in no circumstances should have a statement. Though we have touched on this today, I still believe that there is confusion in people's minds about the nature of the provision for these children, who have been referred to as forming approximately 18 per cent. but who in many schools a far higher proportion—more like 50 per cent. or 60 per cent. We are unclear what is to be the responsibility of local authorities in regard to those children.

We have heard today from the Minister a good deal about what will be in the code of practice regarding the stages of assessment of children with special needs. As I understand it, a lot of local authorities are already using the old-fashioned stages of assessment as they appear in the 1978 report as a way of trying to quantify the provision that those children require. As we learn from the report of the Audit Commission last year, at the moment there is extreme vagueness about how to identify children with special needs who do not have statements and how much extra provision they will need. If we leave the matter unclear, as I believe it still is, we will have missed an enormous opportunity in the Bill to make certain that the majority of children with special educational needs do not, and should not, have statements.

The only reason for the increase in the number of statements in certain local authorities and for the overall increase in the number of statements is that parents, and sometimes schools, feel that to have a statement is the only way that any extra resources will go with the child. Therefore, parents press for statements, and we have the whole apparatus of these extremely expensive new tribunals to settle disputes. It runs between school, local authority and parents who want either a statement if there is not one, or more provision than the statement specifies. The reason that this has arisen is that there is not enough money to provide for all the needs of children. We know that that will be the case forever. Why should there be a bottomless porkbarrel of money? I entirely agree that this is likely to remain a difficulty.

I wish to refer back very briefly to the 1978 report where we quite specifically said that the children who had statements would be a small minority. We were thinking of children who had complex and often multiple disadvantages and for whom any given local authority or area might not be able to provide within their ordinary resources, whether special schools or mainstream schools. We also sought to ensure that if the parents of those children had to move into another authority, they would go armed with their statement which would say what special provision was necessary for these extremely severely disabled children. It is undoubtedly the case that far more children than we envisaged are getting statements—as I say, simply so that parents, and sometimes schools, can feel that they have a way of screwing more money and more provision out of the local authority.

This has given rise to what is, in my view, the most disastrous aspect of special education. I refer to the gulf that has arisen between children with statements and those without them. It is all to easy to think that if a child is in a mainstream school and does not have a statement he is perfectly okay and does not need much else to be provided for him. I put down the amendment to get clarification. If a child is brought to the attention of the local authority, having come to the attention of the school first, and apparently has a special need, the child must be assessed within the school. What I want to know is whether the local authority is or is not involved in the provision that ought to be made for the child once he has been identified and assessed.

This is largely a question of finance. There will be endless disputes unless we can make it clear in the Bill who is responsible for the extra provision that the child may need. I know that in the Bill we have the possibility of the local education authority providing extra in the way of, for example, speech therapy and other non-teaching services or extra teachers, possibly peripatetic or support teachers, who will go into the school. But is it the responsibility of the local authority to see that that provision is taken up? That is less than clear.

Going with such a responsibility, if it existed, would also be the responsibility for ensuring that the needs of the child were being met in the grant-maintained school, monitoring the actual provision that was there and ensuring that the arrangement worked. But, we are told, the writ of the local authority does not run in the grant-maintained schools, and therefore it has no right of entry and no way of monitoring what is going on in the school. I know that what seems like hours ago I had one bash at getting this question cleared up. This is my terminal bash, so to speak. I hope that I shall not have to come back to it. I believe that not only are Members of the Committee unclear about where the responsibilities of the local education authorities begin and end but that they themselves are desperately unclear about it and need to know whether or not they may take responsibility for the education of children with special needs, the vast majority of whom will be in mainstream schools of one kind or another.

The problem has not become really acute because of the comparatively small number of grant-maintained schools. But if what the Government want actually takes place and the majority of schools become grant maintained, where does the responsibility of the local education authority for children with special education needs end or indeed begin? Will it really have responsibility only for those children who are issued with statements? If so, that should be only about 2 per cent. of the school population. Is that really the role that the local education authorities are supposed to have in the future? If so, we should know that absolutely clearly. I would regard that as not quite the death knell but pretty well the death throes of the local education authority. Again, if the local education authority is being surreptitiously condemned to death, we ought to know that because we would know what the problems were.

I regard this kind of fog about where the responsibilities of the funding authority as against the local education authority begin and end as disastrous for the schools. They cannot function properly; they cannot make forward plans; and they cannot budget for their special needs children so long as this fog remains surrounding the issue.

Baroness Blatch

I find what the noble Baroness has just said quite depressing. We have spent a large part of today setting out clearly and in great detail stages 1, 2 and 3 and how they affect every single school in the grant-maintained and in the LEA-maintained sector. I pointed out how the responsibility for statementing remained with the LEA and how the system would work. As far as we could see, there was no lacuna in the system at all. The LEA can require information from the grant-maintained schools and the funding agency can require information the other way.

I find it disappointing. There is a great deal of anecdotal evidence being used. But we are talking about the old system and not the new one as we expect it to work. I have spelt out that the system allows for early identification. As one works through stages 1, 2 and 3 that will become easier and more exposed to practice. I have talked about the way in which every school, whether grant-maintained or local authority, will be required to publish a policy for special needs. That will have to be conveyed to the wider world and to the parents. I pointed out how it would have to be inspected once every four years and the effectiveness of the implementation of that policy.

I can confirm in perhaps a slightly clearer answer to my noble friend Lord Jenkin of Roding, who was concerned about where responsibility lay as far as the LEA was concerned, that Clause 157 defines children for whom the local authorities are responsible and whose special needs they must identify. Local authorities have an unqualified responsibility to identify children who require statements if those children live in the local authority's area and are educated in any maintained or independent school at the expense of the local authority or the funding authority.

The responsibility to identify other pupils—for example, those in the independent sector but maintained at the parents' or someone else's expense—continues with the local authority, but it is a qualified one. It would be important for the LEA's attention to be drawn to the needs of a particular child who is being educated at somebody else's expense.

I refer now to the point raised by the noble Lord, Lord Northbourne, when he asked, "What about the other children who are outside the system somewhere else - either walking the streets, in the subways or whatever?". The local authority would have a responsibility there. However, at stages 1, 2 and 3, where we are taking about the 18 per cent., there is a highly structured system, which is highly transparent. That would be school-based in an LEA-maintained or grant-maintained school.

Amendment No. 211 would require local authorities to identify all pupils who have some special educational needs, and not just those who need a statement. I believe that it would be a serious mistake to put such a duty on the local authority and provide no benefit to the pupils in the schools. The authority would be called upon to identify all pupils with special educational needs—that is, around one-fifth of the school population as the research by the committee charged by the noble Baroness, Lady Warnock, suggested—although, as she said, it is a good deal higher than that in some schools.

I do not believe that this compilation of information by the local authority is the best way forward. It is bureaucratic and not practical. We have debated the code of practice at some length and agreed that it should be extended to cover the school's role in identifying special needs. I have outlined the staged amendment model which we envisage the code adapting. School governors will have to have regard to the codes. They will both be accountable for the exercise of their responsibilities to identify pupils with special needs and have guidance on the exercise of those responsibilities. We have strengthened and enhanced the system for pupils with special needs but who do not require a statement without adding to local government bureaucracy. The Bill and the code will assign responsibility to the appropriate bodies—to schools in the real majority of cases and to LEAs in the minority of cases where statements are necessary. This amendment would assign responsibility to the local authority while leaving power with the schools. While designed with the best intentions to add coherence to the system, I believe that it is the amendment which would sow confusion—not what I have spelt out.

I turn now to Amendment No. 212. This Bill includes many provisions to ensure that parents will play a more active role in making choices regarding their children's education. However, we have also long exhorted local authorities to take into account the wishes of the child when carrying out their duties in respect of his or her special educational needs. Circular 22/89, which we issued jointly with the Department of Health, states that: The feelings and perceptions of the child concerned should be taken into account, and older children and young persons should be able to share in discussions on their needs and any proposed provision". Where a child's age and understanding make it possible, his attitude to the choice of school—be it special or ordinary—will also be a very relevant consideration for the authority when determining a suitable school placement.

I do not think we disagree over the importance of considering the ascertainable wishes of the child within the assessment and statementing processes. But, like many other important matters to be considered within those processes, primary legislation is not necessarily the place to include the relevant provisions. I can assure your Lordships that in our code of practice—this is about the nth time I have said this—which will guide LEAs over all aspects of the assessment and statementing process we shall be covering the place of the child's wishes in those processes. Local authorities will have to have regard to that code. I therefore ask that the amendments be withdrawn.

10.45 p.m.

Baroness Warnock

As I have said before, I am very grateful to learn that the assessment procedure will be formalised to a certain extent - or at any rate used again in assessing the needs of children, most of whom will not end up with statements. Nevertheless, I am not wholly reassured because, although grant-maintained schools are bound by the Act to publish a statement of the arrangements that they are making for special educational provisions, they are not answerable to the local authority for the statements but to the parents. That is absolutely plain.

The local authority has no right to monitor anything to do with what we might call the general special needs provision in the school as opposed to the needs of those children who have statements. That has become absolutely clear. The governors of the grant-maintained schools must use their best endeavours to ensure that all pupils in their schools with special educational needs have their needs met. But they are not answerable to the LEA, they are answerable to the parental pressure that they may be under to make sure that they do what they have promised for the children.

It does not seem to me that the parents are always the best judges of whether or not good provision is being made for their child in accordance with what was promised. There is a great lack here if there are no local authority advisers or expertise to which the grant-maintained schools are answerable to ensure that they are delivering what they have promised. I think I have the clarity that I asked for. I see where the responsibilities of the local education authority lie, and I see the way in which they will be diminished, but I am equally depressed by the clarity that I have achieved.

Baroness Blatch

The noble Baroness is not giving enough credence to the fact that the policy will have to be drawn up, reported, and made public. Every four years the school will be inspected against the effectiveness of that policy. Each individual family will be involved with the progress of that child. There will be compulsory reporting to parents every year, annual meetings and reports. There is a great deal of transparency.

In addition, the local authority will have the power, and will initially be given the resources, to provide the support services both to grant-maintained schools and to its own schools, and it is inconceivable that there will not be contact between a school that has children with special needs, and a grant-maintained school with children with special needs, with the local authority to purchase, or to be provided with, support services. It is up to the local authority whether it wishes to push the money down to the schools, and the schools make the choice, or the local authority holds back the money and makes the provision.

It is bound by law in this Bill to give equal treatment in terms of providing support services for special needs children both to grant-maintained schools and its own schools. There is a great deal of transparency in the system. There has previously not been in place a structure for children's needs at stages I, 2 and 3 in the way that there will be in every single school in the land, and subject to inspection. In addition, local authorities can require information about children with special needs in grant-maintained schools and from the FAS, and the FAS is required to give that information, as are the schools. The code of practice bites on all the agents in the process.

Baroness Warnock

I realise that there is a great improvement in that until now there has been no structured approach to the needs of children who do not have statements. I agree with that, and I am grateful. As to the way in which the relationship between the funding agency, the local authority and the governors of the school works, I should like to believe it; but I fully understand what is intended now, which previously I did not.

On Question, amendment agreed to.

[Amendments Nos. 211 and 212 not moved.]

Baroness Blatch moved Amendments Nos. 213 and 214: Page 93, line 33, leave out from second ("a") to end of line 34 and insert ("maintained, grant-maintained or grant-maintained special school"). Page 93, line 35, leave out paragraph (b) and insert: ("( ) education is provided for him at a school which is not a maintained, grant-maintained or grant-maintained special school at the expense of the authority or the funding authority").

On Question, amendments agreed to.

Clause 157, as amended, agreed to.

Clause 158 [Assessment of educational needs]:

[Amendment No. 215 not moved.]

Clause 158 agreed to.

Schedule 8 [Making of assessments under section 158]:

[Amendments Nos. 216 and 217 not moved.]

Schedule 8 agreed to.

Clause 159 [Statement of special educational needs]:

[Amendment No. 218 had been withdrawn from the Marshalled List.]

Lord Judd moved Amendment No. 218A: Page 95, line 5, at end insert: ("having made appropriate arrangements for translation and interpreting if the child being assessed, or his parents, has English as a second language and").

The noble Lord said: I am disturbed to discover that the Commission for Racial Equality has assembled evidence which shows that the assessment of children with special educational needs and the involvement of their parents in that assessment sometimes takes place without appropriate translation and interpreting. That has evidently led to children being mis-assessed in a number of ways and to their parents playing no part in the assessment. As I understand it, that could constitute unlawful direct racial discrimination against children and parents.

The Commission for Racial Equality is currently undertaking a formal investigation into the arrangements made by one major education authority for the assessment of special educational needs of children with English as a second language. The commission's grounds for believing that unlawful racial discrimination may be occurring there is research undertaken by the authority's own educational pyschologist indicating under-representation of children from ethnic minorities in the moderate and specific learning difficulty category and over-representation in the severe and profound learning difficulty category.

There is reason to believe that may have been caused by the lack of interpreting and translation. Such malpractice could become widespread. The amendment is designed to put an end to it. It will ensure that all children be assessed in their own language, and that their parents are involved on the same basis. I beg to move.

Baroness Blatch

I entirely agree with the noble Lord that parents who do not have English as a first language should participate just as fully in the assessment and statementing process in respect of their children as parents who have English as their first language. Our commitment to improving access to the system for parents is absolute. To that end, issues such as interpretation and translation are important; but we believe they should be addressed in the guidance and not in primary legislation.

We have discussed extensively the code of practice which will embrace national criteria and practical guidance for local authorities when discharging the functions proposed under Part III. We shall be consulting extensively on that code, and we shall cover the point that the noble Lord has just raised.

Lord Judd

If I have one assessment of the Minister, it is that when her resolve is certain, nothing will deter her. In view of the unqualified way in which she has made her statement this evening, I tremble for all those who cross her path. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments No. 218B and 219 not moved.]

The Duke of Norfolk moved Amendment No. 220: Page 95, line 20, at end insert: ("( ) in so specifying as described in subsection (4) above, the local education authority shall take careful account of any parental request that the child's needs be met in an appropriate denominational institution.").

The noble Duke said: Since the passing of the Education Act 1981, which Part III replaces almost in its entirety, Catholic parents of a child who has been statemented and subsequently recommended as being in need of special school provision has no statutory right to demand that consideration be given to placing the child in a Catholic special school which could cater for the particular disability suffered by the child. The only concession we were able to ring out of the then unwilling DES was that a space be provided on the model statement upon which the child's religious affiliation could be inserted.

There are presently 17 Catholic grant-maintained schools, catering for the special needs of some 1,200 pupils. Pupils are sent to those schools by the relevant maintaining LEA. Some of those schools enjoy the continued support of a number of LEAs. However, as the authorities become even more strapped for money, there is an increasing reluctance, now apparent, to meet the denominational preference of the kind which this amendment seeks to place on the face of the Bill.

We believe that by giving due weight to such preference, we are seeking to extend genuine choice and diversity. I beg to move.

11 p.m.

Lord Judd

I assure the noble Duke that on these Benches, we warmly support the amendment.

Lord Northbourne

In supporting the amendment, I should point out that 16 of the 17 Catholic schools are residential. Where suitable local provision cannot be made for a child so that he must attend a residential school, it is especially important for him to have the familiarity and support of the religious background to which he is accustomed. Therefore, there is a great deal to be said for the amendment.

The Earl of Stockton

In speaking in support of my noble friend's amendment, I refer particularly to Amendments Nos. 222A, 222B, 222C, 222D, 233A and 235A.

On Second Reading, I alerted the Minister to the anomaly which existed in the Bill as regards non grant-maintained special schools. A number of noble Lords were kind enough to support me in pointing out to the Government that they are unwittingly discriminating against the pupils and parents of many such schools. I drew attention in particular to Lord Mayor Treloar's College near Andover which enjoys the support of many of the livery companies of the City of London.

I was worried, even as late as Tuesday of this week, that the point had either been missed or ignored by my noble friend Lady Blatch, an anxiety that was shared by my noble friends Lady Faithfull and Lady Young, the noble Baronesses, Lady Warnock and Lady David, and the noble Lord, Lord Addington, all of whom have tabled amendments seeking to deal with that anomaly. It was therefore with some pleasure that I saw on the latest Marshalled List the amendments tabled au dernier cri by my noble friend on arrival at the Chamber earlier today.

However, I am concerned that the wording of Amendments Nos. 222AA, 222BA and 222CAB do not make specific mention of independent schools, merely grant-maintained and grant-maintained special schools. My amendments seek to include all schools that are not grant maintained. The risk remains that local education authorities will see the national obligations towards the grant-maintained sector as a method of offloading their costs, despite the wishes of the parents and pupils to stay in that non grant-maintained sector.

Whether my pleasure, not to say joy, will be unconfined depends on what the Minister says in reply to the debate on this group of amendments. I shall listen extremely carefully to what she says but will, no doubt, have to read her reply in Hansard because such is the mastery of her brief and the speed and authority with which she conveys it to the Committee that I for one sometimes find the sheer torrent of information which she bestows upon us more than my poor brain can encompass at the time.

I understand that that is in part due to the necessity to have all the details of the Government's argument in the written record of the proceedings of your Lordships' House in case they have to be cited by lawyers at some future unspecified time. I hope that that ruling of your Lordships' legal committee will not remain unaltered. Surely all that should be of interest to the lawyers is what is in the Bill when it finally passes into law. If subsequent interpretation of the law depends upon a gloss that may or may not be put on the letter of the law by what is said by Ministers in this Chamber or in another place, in my view the authors of the Bill, and indeed Parliament, can be said to be failing in their duty to include everything on the face of the Bill that makes an Act comprehensible to the public and to those whose duty it is to implement the law. That practice, which dogs the proceedings of both Houses of Congress in the United States, has profound and, I think, undesirable implications for this House and the other place. However, having said that, I hope that my noble friend and her apparent conversion to our cause, albeit in extremis, will deliver the goods.

Lord Jenkin of Roding

I should like to speak to Amendments Nos. 222CA, 222CB, 222DA and 226ZA tabled in the name of my noble friend Lady Young. She has asked me to extend her apologies to the Committee because she has had to leave. Knowing that I was going to support the amendments, my noble friend has asked me to speak to them. I also have authority from the noble Baroness, Lady Fisher, who had similarly hoped to speak to the amendments to say that they have her support. I think that that in a sense represents support from both sides of the Committee.

The Bill apparently purports to give the parents of children with special educational needs the right to state a preference for the school at which they wish their child to be educated. But, as the Bill is presently drafted, that preference seems to be confined to maintained or grant-maintained schools. The matter was raised in another place where my noble friend's colleague, Mr. Forth, acknowledged that, some parents may feel strongly that their child should he placed outside the maintained sector in, for example, a non-maintained special school". However, he declined to accept an amendment to reflect that preference and emphasised that under the Bill parents may "make representations" to the local authority about the school.

I chair an organisation—well, it is not really an organisation: it is a loose committee of the 10 leading voluntary organisations for the blind. We call ourselves the Visual Handicap Group. A number of those organisations are concerned with either supporting or running independent schools for the blind and the visually handicapped. In fact, out of the 21 special schools that exist in this country for visually handicapped people, more than half—that is, 11—are not maintained.

I should like to mention just a few of those schools. There is Dorton House school in Sevenoaks. I am on the council of the Guide Dogs for the Blind Association. We have made a substantial grant to that school because we think that that may produce some more guide dog owners. There is also Henshaw's School in Harrogate which is very well known, St. Vincent's School in Liverpool and the West of England School in Exeter which enjoys a considerable reputation throughout the west of England. Of course, there are a number of others; for example, the noble Baroness, Lady Fisher, is connected to the Birmingham Royal Institution For the Blind. There is also the Catholic Blind Institute, the Royal National College for the Blind, the Royal London Society for the Blind and so on.

The Committee may indeed be surprised to realise that more than half of those special schools for the blind are not actually covered in this part of the Bill; indeed, there does not seem to be any machinery whereby a parent can exercise his or her preference for the child to go to one of those schools. To exclude those schools from parental preference seems to me to be the most drastic reduction of choice. I honestly cannot believe that that is what the Government intended.

It cannot be right to place on parents, who may already be facing considerable problems and stress with their child's condition, the onus of having themselves to make representations to a local education authority within a 15-day hearing. That is what is allowed under the Bill. One can well imagine how less articulate parents without specialised knowledge would find it impossible to press their case with local authority officials. Their difficulties would be compounded if they wished to take the final step of formally appealing against an LEA decision.

These schools are long-established centres of excellence in the education and care of blind children. Indeed I think it is right to say that without exception they have set the standards, have led the way and have provided the touchstone and the bench-mark by which schools in the maintained sector judge themselves. It seems to me that the legislation as it is at present drafted erects a barrier at the school gates which the children will find it hard to scale and behind which the schools may wither.

I have been told that this sector of the education world for the blind is desperately anxious now about its future. Anxieties are felt by parents, staff and governors at a change which they cannot understand and which they feel threatens their future. It cannot be the Government's intention to jeopardise the service which these schools have given to the community—some of them for more than 150 years. Like my noble friend Lord Stockton, I saw the amendment which my noble friend Lady Blatch had tabled and at first I thought, "Ah, she has met the case". But of course she has not done so. There is nothing in the amendment about non-maintained schools; it merely slightly extends the definition to make it quite clear that it covers both grant-maintained mainstream schools and grant-maintained special schools.

I am at a loss to understand what this is about. Many of these schools find that perhaps 85 per cent. plus of their revenue already comes from the public sector in that the pupils are paid for by local authorities. Parents, voluntary organisations, trusts and organisations such as the one providing guide dogs provide substantial sums of money to make up the difference. Why cannot the Bill give parents the right to express a preference in this matter? That is what these amendments are about. I hope my noble friend will give me an answer which my honourable friends in another place seemed to be unable to extract from the junior Minister there.

Lord Swinfen

I wish to follow the powerful speech of the noble Lord, Lord Jenkin of Roding. I am speaking particularly to Amendments Nos. 221 and 222. I wish to speak about blind and partially sighted children, but let us not forget the deaf, deaf-blind and those children with other special educational needs. As my noble friends Lord Jenkin and Lord Stockton have said, we are discussing mainly voluntary schools which were started by charities a long time ago. They are leaders in their own fields. They are not just maintaining current standards but extending them and improving the education that they can provide for children who need special education services the whole time. I could go on for hours, but it is late and I shall not do so. I hope that my noble friend on the Front Bench will take note of what has been said and will come back with more sensible amendments at the next stage of the Bill.

Lord Pearson of Rannoch

I wonder whether I also could support the amendments of my noble friend the Duke of Norfolk, the noble Lord, Lord Northbourne, and my noble friend Lord Stockton. I would remind my noble friend the Minister that she said earlier this evening that the truly excellent non-maintained special schools, whether denominational or not, are very largely supported by local education authorities.

I must say that my noble friend Lord Stockton may have put his finger on a rather delicate spot when he said that the Bill as drafted may encourage local education authorities in future to direct special educational needs children to their own special schools or even grant-maintained special schools to the detriment of non-maintained special schools. It is not even as though these schools are more expensive than the maintained special schools and the future grant-maintained special schools. Generally speaking, they are not. In the case of the schools I know well, the Camphill Community Schools, I believe they are in fact very much cheaper than what is on offer elsewhere. So I, too, join other Members of the Committee in hoping that my noble friend can have another look at this issue before the next stage of the Bill.

11.15 p.m.

Baroness Faithfull

It would seem ungracious of me to ask a question in relation to my amendment, Amendment No. 220C, when it was fully debated with Amendment No. 193AC. However, I should like to support other speakers, because schools for emotionally disturbed children are independent and run by charities. In her reply in relation to the earlier amendment my noble friend said that money for children to go to those schools was dependent on the market concept, and the schools must market themselves so well that the local authorities would want to use them.

I am concerned about that, for the same reasons as my noble friend. Local authorities may want to use those schools, but what is the position if they do not have the money to use them? The schools will have to close, in which case a great resource would be lost to the country. My noble friend generously said that there was to be consultation on the whole issue. Will this aspect be taken into account?

Lastly, if a child is statemented and sent to one of these schools, must the local authority then pay, or is it able to say that it cannot afford to pay?

Baroness Masham of Ilton

I, too, should like to support this group of amendments. While I was listening to Members of the Committee I was reminded of a convent school near Chelmsford which my daughter attended. A very difficult child from London was sent there. She had been badly abused by her parents. She had run away from several schools and the local authority was in desperation. That was the only school which managed to give her security and help that emotionally damaged child over her problems. Therefore, I hope that the Minister will think very carefully and accept the amendments.

Lord Ponsonby of Shulbrede

The Committee knows that we on this side of the Chamber have a presumption in favour of the local education authorities. We had that debate earlier in the day. Having said that, there is a logical extension to the Government's philosophy being put forward from the Back Benches opposite. I would say from these Benches that the point has already been made that many local education authorities place children in such independent schools.

I should like tentatively to advance two possible arguments against the amendments. One is that the balance may be skewed in favour of one particular form of preference, namely, the special school. We have already heard that parents have a right under the Bill to express a preference. The second possible argument is that there may be a temptation for some unprincipled lobbyist to advertise special schools to parents who are in a particularly vulnerable position.

In advancing those arguments I recognise that on this side of the Chamber we have a preference for the local education authority. I understand the logic of the argument being put forward by the Back Benches opposite. I shall be interested to hear the Minister's response.

Lord Addington

Amendments Nos. 221 and 222 are concerned with extending the choice of school. I am not sure whether the amendments in the name of the noble Baroness cover the same points as we are trying to address, but I shall be very interested to hear the Minister's reply.

The Lord Bishop of Guildford

Just in case the Minister is in any doubt about the wide consensus in support of the amendments I should like to make it clear that the amendments have my fullest support.

Baroness Blatch

Perhaps I may first make some general points. It is certainly not the intention to jeopardise those schools. As my noble friend Lord Jenkin of Roding said, the majority of young people accommodated by these schools come from referrals from the local authority; and money follows the child.

Perhaps I may answer the specific question of my noble friend Lady Faithfull. If one of the schools is named in a statement and a child is sent to one of those establishments, there is no question as to who pays the bill. The local authority pays the bill. If it has blessed the statement and named a specific school in the statement, then the local authority must provide. The local authority will have to make judgments about the comparable provision that is consistent with the statement in its own authority. Those are difficult judgments that a local authority has to make.

There have been references to the market. I followed up my earlier remarks with a personal recollection of the meetings I had with my noble friend Lady Faithfull and representatives from the non-maintained special school sector. Like my noble friend Lord Pearson, I believe that that sector often offers not just good value for money but better value for money than local authorities. In the past, we have not had sufficiently clear information about the unitary costs of local authority provision. We are now beginning to obtain that information, and judgments on relative value-for-money factors can be made. That is an important factor too.

I note that almost every Member of the Committee who has spoken against my proposals is from my own Benches. Wholly uncharacteristically, the only person to whom I can look for support in the debate is the noble Lord, Lord Ponsonby. I am beginning to be worried about that. I have not had a sleepless night in some nights; my head hits the pillow and I sleep. I might find it more difficult tonight. However, there is a fine distinction between making a representation and stating a preference. I wish to attempt to explain that because I believe it is important.

Local authorities will be entirely free to make a choice across the whole range of schools including the independent sector, non-maintained special schools, grant-maintained special schools, grant-maintained schools and local authority schools. But I wish to place on record too the Government's regard for the high quality of specialised provision offered by many non-maintained special schools and other institutions outside the maintained sector. Non-maintained special schools represent the valuable and longstanding contribution of voluntary organisations to the field of special education. They and many independent schools approved by the Secretary of State offer high quality provision which is often cost effective. Their role is all the more valuable in that they bring diversity to the education system and offer choice to local authorities and parents. I am confident that under the Bill their position will be safeguarded. As long as they continue to provide good education at a reasonable cost they ought to be secure in the future.

The Government's proposals in the Bill will enhance provision for children with special educational needs. We are improving the system as a whole, building on the 1980 Act and the 1981 Act. I do not wish to repeat them—I have been repetitious today on many points—but I covered some of the Bill's most significant elements. I would ask noble Lords, if they do not mind, to re-read some of those statements in Hansard.

However, we should not mistake the very important advance which those provisions represent. They mean that there will be measures in place which will restrain the demand for statements because children's needs will be identified and met at the earliest possible stage in the school. They will mean that when a statement is made it will be clear what provision is needed. It should then be clear which schools can properly make that provision - which is a child's entitlement. If a non-maintained school or an independent school can best meet the child's needs at reasonable cost, then the school should be named in the statement. If it is not, parents may appeal and the tribunal may direct the local authority to name a non-maintained or an independent school; and the local authority would be obliged to pay.

I am worried that in their wholly admirable concern to ensure the best possible deal for children with special educational needs and their parents, some Members of the Committee—in particular all my noble friends—in pressing for a right for parents to state a preference for a non-maintained or independent school will jeopardise the system that we are putting in place.

I am particularly anxious that if parents of children with statements—and only of course parents of children with statements have a right to choose a school in the independent sector—and if LEAs are obliged to accede to that choice when certain conditions are met, there will be enormous pressure on local authorities to make statements. That is human nature. But it turns the new system on its head. It places emphasis on the statement when we wish to place emphasis on the role of the mainstream school; it places emphasis on the non-maintained or independent school the child may. eventually attend when the first consideration should be to identify his or her needs; and I am afraid it places emphasis on conflict when we wish to place emphasis on partnership.

In short the amendments before us would stoke up pressure all round. There would be: pressure from parents for statements; pressure from non-maintained and independent schools on the local authorities to send children to those schools; pressure from parents on local authorities to name non-maintained and independent schools; and, as a result, I fear, pressure on the tribunal to deal with a large number of appeals cases.

I would point out that this also is an area on which the code of practice will provide clear guidance. The Bill carries forward from the 1981 Act the statutory duty on local authorities to arrange appropriate provision for children who have a statement of special educational needs. The school which a local authority names in a statement must meet certain criteria; namely, the suitability of the placement to the special educational needs of the child; the provision of efficient education for the other children in the school; and the efficient use of resources. The code will give guidance as to how those conditions must be met. On that basis there is no reason at all why a local authority should not continue to name independent and non-maintained special schools in statements; and no reason at all why parents should not make representations for that, too. Furthermore, Clause 179 makes clear that a local authority is responsible for paying the fees, and the board and lodging where necessary, where a non-maintained special school or independent school is named in a statement.

We are establishing a system which protects all children with special needs, gives new rights to parents and allows non-maintained and independent schools to play an important role. We are widening parental choice. We are giving parents rights to make representations in favour of non-maintained and independent schools. We are obliging local authorities to consider those representations. But we do not wish to boost the demand for statements, increase the scope for conflict or overload the special needs tribunal. In short, we believe we have the balance right. I hope that noble Lords will not feel that it is necessary to press these amendments.

Lord Northbourne

Before the noble Baroness sits down, if she is appealing to the market principle, then surely there ought to be a level playing field as between the independent sector and the maintained sector. If parents are allowed—as I believe I am right in saying they are—in Schedule 9 only to state a preference for a maintained school, we do not have a level playing field.

Baroness Blatch

As I said at the outset, there is a fine distinction between preference and making representations. There is nothing to stop parents making representations or stating a preference. The reason I say that there is a distinction between the two is that the local authority, under the provisions of the Bill, as the noble Lord, Lord Ponsonby, has said, is bound to presume in favour of that preference so long as it meets the three criteria that I mentioned much earlier; that it is consistent with the statement that it does not impact adversely on other children, and that it is an efficient use of resources. It must presume in favour of that statement. In other words, if it is possible, consistent with the statement, to make provision within a local education authority, then that provision should be met within the local education authority.

However, if a parent makes representations for a non-maintained special school or an independent school, that has, by law, under the provisions of the Bill, to be taken into account. And the local authority can choose. The local authority can name a non-maintained special school or an independent school even if the parents have not stated a preference; if they have stated a preference for the maintained sector but have not made representations, it is also possible for the parents to appeal. It is equally possible for the parents to appeal if they have made representations and indeed stated a preference and the local authority has presumed in favour of that placement.

At the end of the day, the tribunal has to make a judgment about whether the local authority has made proper, appropriate provision consistent with the needs of the child. That is the judgment at the end of the day. So there is a slight edge and it is no more than that. There is no fettering of the freedom of the LEA. If provision can be made in the local authority and it is wholly consistent with all the provisions of the Act, there is a slight edge for the local authority provision. But at the end of the day, the needs of the child are paramount.

Baroness Seear

Is the Minister saying that if there is a vacancy in a local authority school, it is very unlikely that the child should go to an independent school?

11.30 p.m.

Baroness Blatch

I am saying that if there is provision in a local authority that can properly be provided consistent with all the details set out in a statement and that provision meets the three criteria I mentioned, then the authority could presume —indeed, it needs to presume—in favour of that local authority provision. It would have to give reasons to the parent why it had not placed the child consistent with the representations that had been made by the parent. Those would be the reasons. If that parent wished to appeal, he or she would go to the tribunal and it would be the tribunal which would make a judgment on whether that local authority provision was consistent with the statement.

Lord Jenkin of Roding

I must express my gratitude that my noble friend has manifestly done her best to justify the case for the provisions of the Bill as they are. But I have to say that, uncharacteristically for her, she has totally failed to convince me. In fact she has said that if parents are given a choice they will choose the independent schools; therefore we cannot give them a choice, because we do not want them to go to the independent school if there is a place available for them at the maintained school.

That is an astonishing argument to come from a Minister in the present Government. I must ask her to take this matter back to her right honourable friend and have another look at it. Is she seriously saying that as there are 21 schools for the blind, the 11 local authority maintained schools have to be full before a single pupil can exercise a preference? They can make their 15-day representation. I cannot believe that is what she means.

I say this in the context of schools for the visually handicapped and I also have experience of schools for the deaf. In my former constituency, there is the Sir Winston Churchill Schools for Deaf Children. When the parents had the choice, they used to come and live in Wanstead and Woodford in order to be near the Sir Winston Churchill Schools for Deaf Children. They came from all over the country because they recognised that it was the best school for the deaf. They cannot exercise any preference for it under the Bill.

The time is 11.30 p.m. and we cannot vote on this issue tonight. It would be foolish to do so. But I should like to bring representatives of the blind schools to talk to her right honourable friend. I cannot believe that is what she means. It is an astonishing case. I just do not believe that Ministers have grasped the reality of what is being said.

Baroness Blatch

I hear what my noble friend says. I want to make two points. First, there are enormous pressures on local authorities. I am sure we would all agree on that. We are talking about a very expensive part of the provision. We have already said in this Bill that there will be a guarantee through the statementing process that the provision is truly consistent—wholly consistent—with the statement that should be made for each child that is statemented. I believe the point is fair; because if the provision is more cost-effective, there is no contest anyway.

It is also inconceivable that children who at this moment are being placed in the deaf schools, the blind schools and the schools for behaviourally disturbed children, will not continue to be so placed. The local authority, even when the provision is more expensive, knows that that is the appropriate provision for which to make the choice. The distinction I make is that if provision can be made wholly consistent and more cost-effectively within the LEA borders, then the presumption must be in favour of the LEA being allowed to make that choice. That is the only distinction that I make.

But my noble friend is persistent. I promise the Committee that this is not my final word on this matter. I shall take it away. I shall reflect on what has been said, discuss it with my right honourable friend and colleagues in the department and continue to think about it until Report stage. I shall come back again with a wholly open mind.

Lord Jenkin of Roding

I am obliged to my noble friend.

Baroness Faithfull

Perhaps I may ask one final question. In considering a child's case a local authority may approach its treasurer. If the treasurer says it is too expensive then the child may not be statemented to go to the school that everybody else wants. Is that legal?

Baroness Blatch

My noble friend has the situation the wrong way round. The child is diagnosed as having special educational needs. Those needs are set out in a statement and then the education provision consistent with those needs must be found. It is reasonable for the treasurer to say to those involved in making that professional judgment that they must look for the most cost-effective solution. But the cost-effective solution they come up with must be wholly consistent with the statement, whatever the cost.

Baroness Masham of Ilton

As the Minister says she is going to take the amendment away perhaps I can ask a question. As well as the cost-effectiveness, will she take into consideration the happiness and well-being of the child?

Baroness Blatch

All aspects of the needs of the child will be considered. I have already said that the ascertainable wishes of the child, of the family and parental preferences are all built into the system. That is all part of the bank of information to be considered at the time.

The Duke of Norfolk

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 220A: Page 95, line 30, leave out ("or grant-maintained") and insert ("grant-maintained or grant-maintained special").

The noble Baroness said: Amendment No. 220A is my second amendment. It is a sensible, logical extension of the Bill's provisions to embrace the new category of grant-maintained special schools which the Bill will establish. Government Amendment No. 222AA, to paragraph 3(4) of Schedule 9, which we will be debating later, seeks to extend similarly the parallel duty upon local education authorities so that the duty will apply also when an authority wishes to specify a grant-maintained special school in a statement. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 220B, 220BA and 220BB not moved.]

Clause 159, as amended, agreed to.

[Amendment No. 220C not moved.]

Schedule 9 [Making and maintenance of statements under section 159]:

Baroness Blatch moved Amendment No. 220D: Page 185, line 35, leave out ("maintained school or grant-maintained") and insert ("maintained, grant-maintained or grant-maintained special").

The noble Baroness said: In moving Amendment No. 220D I shall speak also to Amendments Nos. 222AA, 222CAA and 222CAB. These are technical amendments which parliamentary counsel has prepared for us. The aim of Amendments Nos. 220D, 222AA and 222CAB is to extend various provisions within Schedule 9 to embrace the new category of grant-maintained special schools which this Bill will establish. I am confident that the Committee will agree that where the Bill gives parents new rights in respect of schools within the maintained sector, grant-maintained special schools should be included.

Amendment No. 222CAA is also a technical amendment. Paragraph I of Schedule 9 states that all references to a statement of special educational needs in Schedule 9 refer to a statement made under Clause 159 of the Bill. The specific reference in paragraph 6 is therefore superfluous. I beg to move.

Lord Ponsonby of Shulbrede

I realise that these are technical amendments but I have some technical queries. First, to be absolutely clear, is a grant-maintained special school a grant-maintained school? Secondly, in Part III of the Bill grant-maintained schools and grant-maintained special schools would now appear to have different legal identities. Is that the case for the rest of the Bill.

The first occurrence of a grant-maintained school in the Bill is in Clause 7. No mention is made of grant-maintained special schools. Are grant-maintained special schools included in the ambit of Clause 7?

Baroness Blatch

Grant-maintained special schools, grant-maintained schools and LEA-maintained schools are a class of school.

On Question, amendment agreed to.

[Amendments Nos.221 to 222A not moved.]

Baroness Blatch moved Amendment No.222AA: Page 186, line 11, leave out ("or grant-maintained") and insert ("grant-maintained or grant-maintained special").

On Question, amendment agreed to.

[Amendment No.222B not moved.]

Baroness Blatch moved Amendment No.222BA: Page 186, line 12, leave out ("in the area or) and insert ("maintained by").

On Question, amendment agreed to.

[Amendments Nos.222C and 222CA not moved.]

Baroness Blatch moved Amendments Nos.222CAA and 222CAB: Page 187, line 13, leave out ("under section 159 of this Act"). Page 187, line 33, leave out ("or grant-maintained") and insert ("grant-maintained or grant-maintained special").

On Question, amendments agreed to.

[Amendments Nos.222CB to 222DA not moved.]

Baroness Blatch moved Amendment No.222E: Page 188, line 1, leave out sub-paragraph (3) and insert: ("( ) Where the local education authority determine not to comply with the request—

1. (a) they shall give notice of that fact and of the effect of paragraph (b) below to the parent of the child, and
2. (b) the parent of the child may appeal to the Tribunal against the determination.").

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

The amendment that I have placed before the Committee is a technical amendment. Its aim is to ensure that, should an authority determine not to comply with a request under this paragraph, the parent is informed by the authority of its decision and of the right to appeal to the SEN tribunal against the authority's decision. This is a sensible amendment and is also consistent with provisions elsewhere in Part III of the Bill which require an authority to inform parents of a decision regarding their child's special educational needs against which they may appeal to the tribunal and of that fact.

Lord Ponsonby of Shulbrede

Given the hour, I speak very briefly to Amendment No. 223. The amendment seeks to open the books. The local education authority should show a parent all the evidence that it intends to bring to any tribunal hearing. That prevents the LEA from springing confusing and technical evidence on a parent so as to win its case by what I believed to be unfair means. Unless the amendment is passed, the likelihood of the special needs tribunal turning into a highly formal lawyer-dominated process is much greater. I am sure that your Lordships would not like to see that happen. Parents will feel that they have to employ lawyers to have a chance at such a tribunal, so in the interests of what may be characterised as natural justice I will be moving this amendment.

Baroness Darcy (de Knayth)

I welcome the Minister's amendment, Amendment No. 222E. I believe it to be extremely sensible. I also strongly support Amendment No. 223. It will be of great benefit to children and parents and may lighten the workload of the tribunal. I stress that it is not a freedom-of-information question; it refers only to professional reports on which the educational provision is based and which will in any case be disclosed at the tribunal when it comes to it.

11.45 p.m.

Baroness Blatch

I agree that as part of any discussion which the LEA has with a parent about ceasing to maintain a statement it should share the information it has which has led it to its view in the first place. Given good will and reasonable communication parents should understand and be party to an authority's decision. In many cases a parent will, after hearing what the authority has to say, agree with the LEA's view and what it proposes to do.

But if after all that they still cannot see eye to eye, and the parents disagree with an LEA's proposal to cease to maintain a statement, then they already have full rights to appeal built into the Bill—as the amendment acknowledges. Moreover, in any appeal, each side's evidence will be copied to the other. This happens with present appeals to the Secretary of State on other matters, as is required by the rules of natural justice, but the Committee will know that the right of appeal for parents who disagree with an LEA's proposal to cease to maintain a statement—which this paragraph introduces—is brand new. The LEA will know that the parent has that right of appeal.

Moreover, the code of practice which my department is developing, and over which we shall consult, will provide further guidance to schools on how much they should themselves do for children with special educational needs before involving the LEA. This will make it clearer for all concerned—authorities, governing bodies, schools and parents—just what the respective duties are, when a school has done as much as it reasonably can, and when an LEA needs to intervene—or indeed when it may be that a statement should be discontinued. I hope that that reassures the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Darcy (de Knayth).

On Question, amendment agreed to.

[Amendment No. 223 not moved.]

On Question, Whether Schedule 9, as amended, shall be agreed to?

Lord Swinfen

Perhaps I may make a brief point on the contents of statements. Can my noble friend assure the Committee that the need for speech therapy will form part of the educational content of a statement as I understand that at present many local authorities are still including it under part V of the statement, which means that there is no opportunity for appeal against it. This can form an important part of the education of a child. I should be grateful if my noble friend could give that undertaking.

Baroness Blatch

We had a long debate about speech therapy at the beginning of our proceedings today. I ask my noble friend whether he would be so kind as to read what we said earlier. I also said that both educational and non-educational needs would be included in making provisions for children with special needs.

Schedule 9, as amended, agreed to.

Clause 160 [Appeal against decision not to make statement]:

Lord Elton had given notice of his intention to move Amendments Nos. 224 and 225: Page 95, line 42, at end insert: ("(1A) The notice specified in subsection (1) above shall include a statement of the cost, if any, referred to in subsection (3) of section 158 of this Act".). Page 95, line 43, at end insert: ("either— (a) the cost referred to in subsection (IA) of this section, or (b)").

The noble Lord said: I have already spoken to these amendments as part of an earlier group. I should like to move them formally in case the Minister has anything to say about the points which they address. I beg the Committee's pardon. I spoke to these amendments a long time ago. I do not need to move them.

[Amendments Nos. 224 and 225 not moved.]

Clause 160 agreed to.

Clause 161 [Appeals against contents of statements]:

[Amendments Nos. 226 and 226ZA not moved.]

Clause 161 agreed to.

Clauses 162 and 163 agreed to.

Clause 164 [Assessment of educational needs at request of governing body of grant-maintained school]:

[Amendment No. 226A not moved.]

Clause 164 agreed to.

Clauses 165 and 166 agreed to.

Clause 167 [Constitution of Tribunal]:

Baroness Blatch moved Amendment No. 226B: Page 99, line 43, leave out ("Regulations shall provide for the establishment of") and insert ("There shall be established").

The noble Baroness said: This amendment is grouped with Amendments Nos. 227A to 227D, 227DA and 227E. The Committee will be aware of the Government's wish to improve parents' statutory rights of appeal against the local authority's decisions in respect of children's special educational needs. This follows sustained criticism of the present appeals system with its excessive delays. In seeking to improve the appeals system our objectives have been to create a new system that is quick, simple, impartial and independent; a system in which informality is the key word but which at the same time gives parents complete confidence that their child's needs will be properly met and fully considered.

We firmly believe that the independent special educational needs tribunal is the best way to meet those objectives. We have made it clear both in this House and elsewhere that the tribunal should provide a simple and straightforward means of resolving disputes between parents and local authorities. The amendments before the Committee today are intended to clarify both the status and the authority of the tribunal and to emphasise its independence and impartiality. I commend the amendments to the Committee and beg to move Amendment No. 226B.

On Question, amendment agreed to.

Lord Prys-Davies moved Amendment No. 227: Page 99, line 46, at end insert ("and in Wales of a tribunal to be known as the Special Education Needs Tribunal for Wales.").

The noble Lord said: I regret that my noble friend Lord Elis-Thomas, in whose name the amendment also stands, is unable to be here due to a long-standing commitment. It is right to say that the proposal to set up a special educational needs tribunal has not been well received in Wales. The Welsh organisations with a special interest in the subject would have preferred a modification of the present appeals system. In particular, it is feared that the tribunal proposed by the Bill will be too legalistic, formal and inaccessible. That will tend to lead to apathy.

However, as the Government are against modifying the present appeals system, it is essential that there should be established an independent tribunal for Wales. I believe that that is attested by the special education consortium and by many voluntary organisations in Wales, including the Children in Wales organisation. I also believe that it is reflected in the responses which the Welsh Office has received but which it has not published.

In another place the Minister of State at the Welsh Office said that in Wales we have 14,000 children with statements. That represents about 2.9 per cent. of the school population. I believe that that is higher than the figure for the United Kingdom. I do not know—and I do not know whether the evidence is available—how many of the statements have been the subject of appeal. It would clearly be helpful if we had that information.

The case for setting up an independent Welsh tribunal is based on three main grounds. The first is one of benefit to the individual child. That should be the paramount principle. I am reminded of that in the light of the work which we did on the Children Act. By now the Welsh language is an essential part of the educational environment in Wales. In a sense we have at least two linguistic communities: the Welsh-speaking, bilingual community and the monolingual English-speaking community. We have our own national curriculum and a highly developed and excellent all-Wales strategy for the mentally handicapped. A statutory Welsh Language Board will be set up under the Welsh Language Bill, which is awaiting Second Reading in the Commons.

Clearly, against that kind of background, any special educational needs tribunal operating in Wales should have an intimate and immediate knowledge of the Welsh bilingual scene with its distinctive curriculum and funding arrangements. It should be familiar with the special educational needs which have a bilingual dimension. It should also be aware of the facilities available in Wales.

The voluntary bodies which have been in touch with me believe that it would be unfair and unreasonable to expect a Welsh member of the GB body, or a GB body listening from time to time to a Welsh complaint, to have a full and adequate understanding of the Welsh position that I have described and of the needs of a Welsh child. I understand that such a body would be in some difficulty in gaining the confidence of Welsh parents and educational bodies.

That is the main argument, but it is supported by two others. The second is the argument of convenience for parents and witnesses. An independent Welsh tribunal would be within easy reach of parents living in Wales. The travelling time and costs of parents and witnesses attending such a tribunal would be reduced. Also, it has not gone unnoticed that under Clause 170 it would be a criminal offence, punishable by a fine not exceeding level 3, not to attend a meeting of the tribunal if summoned to do so. I hope that the setting up of a Welsh tribunal would also lead to a reduction of work at the centre and to a speedier decision for the parent.

The third argument, which I shall only touch upon, is based on the right of Wales to have its own national institutions. The amendment would be consistent with the policy of successive Governments since the 1939–45 war to set up Welsh institutions to meet Welsh needs. For the three reasons that I have advanced and, in particular, for the first, we believe that the amendment has considerable merits. I beg to move.

Midnight

Viscount St. Davids

I appreciate the concerns of the noble Lord in wanting to ensure that the new tribunal arrangements fully reflect the needs of Wales and cover the particular features of the educational scene in the Principality. Let me assure him that I, too, would not countenance a situation which took no account of Welsh issues and interests. However, this can be achieved under the arrangements proposed in the Bill and there is no need to have a separate tribunal for Wales. There is no question of appeals in Wales not having a Welsh identity.

It may be helpful if I emphasise that the tribunal will not be established as a once and for all body in a fixed location; rather, we have made it quite clear that separate local tribunals will be set up and operate whenever and wherever appeals are lodged—and that includes different parts of Wales, as near as possible to the home of the appellants.

The tribunals will comprise three people—a legally qualified chairman from a panel appointed by the Lord Chancellor and lay members from a panel appointed by the Secretary of State. The Secretary of State for Wales will make appointments to the lay panel of people with the appropriate expertise and attributes to serve on such tribunals, as well as a knowledge and appreciation of Welsh life. I fully expect that the panel of chairmen appointed by the Lord Chancellor will also include people with similar attributes.

I am sure the noble Lord would agree that it is important that the right people are put forward for the tribunals to deal in an expert and sensitive way with the issues that will arise on such appeals as well as to cover Welsh interests. Accordingly, where appropriate, the tribunals will include people who not only have particular specialist experience but also have a particular appreciation of issues in the Principality. Bearing in mind the wide range of special needs, it must be open to question whether a separate Welsh tribunal system would always be able to offer the necessary expertise in cases of highly specialised difficulties. We do not want to cut Wales off from access to experts in their field. Further and most importantly, I am sure that the noble Lord would agree that, in considering the needs and provision for children with special educational needs, we must have a consistent approach between England and Wales.

The local tribunals will be focusing their attention on the statutory code of practice to which, in future, LEAs will be required to have regard. That will operate for England and Wales. It would not make sense to have a code operating different criteria in the two countries. Similarly, how could Members of the Committee contemplate a situation where tribunals in England applied different standards from those in Wales and vice versa? One tribunal system, with panels sitting in both England and Wales—and even within Wales in various locations—represents the most effective and fairest way of handling appeals and is in the best interests of the children concerned.

In addition, the noble Lord will note that the tribunals will be served by a central secretariat which, for appeals in Wales, will include Welsh Office officials. The Secretary of State for Wales will be consulting widely in Wales on the arrangements for the running of the tribunals. I see no reason why translation facilities cannot be provided where appropriate. In sum, I can see no cause for concern that no account will be taken of particular Welsh issues in the new arrangements.

It is in the interests of all children with special needs that the arrangements are applied consistently and uniformly in both England and Wales while at the same time taking account of Welsh circumstances and conditions. This applies both in terms of the composition of the tribunals and in the application of a common code of practice. The Bill's provisions achieve this. I trust that the noble Lord will accept that the system we envisage—local tribunals sitting as near as possible to an appellant's home, appointments to the panel of lay members of persons with a knowledge of the Welsh scene and a joint secretariat for appeals in Wales—obviates the need for his amendment and that he will seek to withdraw it.

Lord Prys-Davies

I have been following the Minister's response. I believe that it meets one of the main arguments that I have advanced for setting up an independent tribunal, but it leaves untouched the other two arguments. The Minister raised two objections in principle to setting up a tribunal. The first was that a Welsh tribunal would not have access to the necessary expertise. That argument has not been raised before in the other place or by any of the organisations. I should have thought that the tribunal would need access to specialist knowledge that is part of the Welsh experience itself.

The noble Viscount raises a second objection. If we had two independent tribunals, one for England and one for Wales, that would make it difficult to achieve a consistency of approach. I submit that that argument overlooks the fact that the code of practice will go a long way to ensure consistency of approach where that consistency is desirable, and provided also that it is consistent with flexibility where flexibility is required.

The noble Viscount referred us to Clause 170. Clause 170(2) (b) envisages that there will be more than one tribunal. I wonder whether the noble Viscount can take our amendment away and consider whether the department could in some way strengthen Clause 170(2) (b) to ensure that one of the tribunals will have special responsibility for Welsh cases. I should not like to draft the amendment at this time of night. I wonder whether the department could build a new subsection onto Clause 170 to reflect the thinking expressed by the noble Viscount.

Viscount St. Davids

I can give no such commitment, but I shall write to the noble Lord on the issue that he has raised to see whether I can reassure him that the proposals put forward in the Bill will meet with his satisfaction.

Lord Prys-Davies

I thank the noble Viscount for that response. In the light of his promise, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendments Nos. 227A and 227B: Page 100, line 14, leave out ("under subsection (1) above may") and insert ("may— ( )"). Page 100, line 16, at end insert ("and ( ) make such other provision in connection with the establishment and continuation of the Tribunal as the Secretary of State considers necessary or desirable").

On Question, amendments agreed to.

Clause 167, as amended, agreed to.

Clauses 168 and 169 agreed to.

Clause 17O [Tribunal procedure]:

Baroness Blatch moved Amendments Nos. 227C and 227D: Page 101, line 7, leave out ("of a tribunal"). Page 101, line 9, leave out ("of the tribunal").

On Question, amendments agreed to.

Lord Swinfen moved Amendment No. 227DA: Page 101, line 24, at end insert ("in particular those incurred by parents and parent befrienders in attending the tribunal").

The noble Lord said: This is a probing amendment. The desirability of reimbursing parents for the costs of attending tribunals was recognised by the Minister, Mr. Timothy Boswell, during the Bill's passage through the other place. He told the Committee in the other place on 28th January that the Government intended to pay parents' travel expenses to tribunals. He also told the Committee that the Government were open to representations on other matters relating to tribunals. That is welcome. Such costs can be considerable for parents, particularly those of deaf and deaf-blind children and children suffering other serious disabilities.

In recommending that commitment for legislation, I argue that it should be extended to cover the costs of parent befrienders. If a parent takes a solicitor to the tribunal, that solicitor's costs will usually be authorised. The National Deaf Children's Society and SENSE often support parents of deaf and deaf-blind children at tribunals. The staff of the National Deaf Children's Society have well over 1,000 cases annually and its volunteers deal with many hundreds more on a local basis. Many families lack the confidence to put forward clearly their case when they are in disagreement with their local education authority. For some from ethnic minorities or if the parents themselves are deaf, there are additional communication problems arising from the fact that English is not their first language. That may be so for those who are ethnically British who have sign as their first language; it does not necessarily mean those whose families originate from other parts of the world.

At present, such support is funded entirely from charitable sources. Why should solicitors be paid for helping parents at tribunals while members of charities, whose funding comes from voluntary sources, do not receive reimbursement from the tribunal? I beg to move.

Baroness Blatch

The wording of Clause 170(2) already embraces the principle contained in the amendment in making a general provision for the awarding of costs and expenses. In addition, Clause 170(3) makes specific provision for the Secretary of State to pay such allowances to persons attending the tribunal, as he may with the consent of the Treasury determine". That could include payment of expenses in the manner envisaged by the amendment.

I should make it clear that as a general rule the special needs tribunal will not award costs against an unsuccessful party to an appeal. Its role is to make educational judgments. We envisage that an order for costs would be made only when one of the parties had acted in a frivolous, vexatious or otherwise unreasonable manner, thereby putting both the other party and the tribunal to a great deal of wasted time and money.

However, I must emphasise that that power would be used only in the most exceptional circumstances. I have said that the principles behind the amendment are already contained in the Bill. As my noble friend said, Ministers made a specific commitment to the payment of parents' travel expenses during the Commons Committee stage. It would be inappropriate to include those or other detailed provisions for the payment of costs and expenses in primary legislation. Detailed provision of the type envisaged should be dealt with in the regulations and we shall consult widely on those during the autumn. I hope that my noble friend will feel able to withdraw the amendment.

Lord Swinfen

I shall certainly withdraw the amendment. I hope that my noble friend and those who advise her will consider seriously granting the expenses of parents' befrienders and not just those of solicitors who would expect to be paid for legally representing the parents. Many people would not dream of going to a solicitor. In fact, the very idea frightens them. They would rather seek help from charitable organisations which, my noble friend will know—because I am sure that she has contributed—obtain their funds from voluntary sources. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 227E: Page 101, line 24, at end insert: ("( ) for taxing or otherwise settling any such costs or expenses (and, in particular, for enabling such costs to be taxed in the county court)").

On Question, amendment agreed to.

Clause 170, as amended, agreed to.

Clause 171 agreed to.

12.15 a.m.

Clause 172 [Special schools]:

Lord Judd moved Amendment No. 227F: Page 102, line 14, at end insert: ("(2A) An educational unit within a hospital which is, for the time being, being approved by the Secretary of State as a school, shall be a maintained special school falling within subsection (2) above.").

The noble Lord said: There is clearly a powerful need to ensure high quality provision in all hospitals whenever a child is able to participate in education. As I understand it, the Government are proposing to provide a statutory basis for the education of children not in school. That is to be done by grouping all such provision under the heading of "pupil referral units".

However, the education of children in hospital is very different from that provided for those children who are likely to be the main recipients of education at "pupil referral units". Children are often in hospital for short periods of time and flexibility is required to meet their educational and social needs. The pupil referral units appear to be designed principally for children who have been excluded from school and who are likely to be in attendance at them for medium to long term periods. Both PRUs and hospital tuition units will have the objective of following the national curriculum, but that may not be so easily obtainable for children who are in hospital for short periods of time.

Both PRUs and hospital tuition units will require expert liaison between the unit and the pupils' home schools, although once again the nature of it will be different. For hospitals, the object will be to integrate the child back into the school straightaway, while with the pupil referral unit it may be a process that takes several months; indeed, in the end it may not prove possible.

The proposal in Amendment No. 228 to establish a grant-maintained school in each hospital for the education of children is surely an unduly cumbersome and even unduly bureaucratic way of making appropriate provision in hospitals. The Minister will be able to confirm the figures, but I believe that there are approximately 40 hospital schools that have been approved special schools and 150 other hospitals where there are sufficient children as in-patients to merit some form of professional educational input. Frequently, that may be only one person working on a part-time basis, but the larger departments will have a full-time staff attached to the school. Indeed, there may be provision for out-patients and day patients. However, the provision of many hospitals will have to be flexible because of the varying nature of paediatric caseloads. The establishment of a school at those hospitals, whether it be grant-maintained or LEA-maintained, with the additional cost and support that schools require is difficult to justify.

The intention of Amendments Nos. 227F and 228ZA is to require a hospital education unit to be set up in hospitals where children are normally admitted. It is hoped that regulations made by the Secretary of State would be able to specify the amount of educational provision that a child should receive in hospital and that regulations made under Clause 255 ("Inter-authority recoupment") will recognise that the home LEA of pupils has to pay the maintaining LEA the cost of educating the children.

I suggest that regulations should specify matters such as the minimum length of stay before a child can be educated. For example, can a child be educated for a stay in a hospital as short as a half day, especially where there are repeated admissions, as with children on dialysis? Can children who are day patients, perhaps in psychiatric out-patient units, be educated? What is the appropriate staffing ratio for hospital provision? I believe that there is now no current guidance on the pupil-teacher ratios in hospital provision as the 1974 circular covering the matter was replaced in 1990.

It should be noted that there are no cost-control mechanisms in Amendment No. 228 tabled in the name of the noble Lord, Lord Young. We would all wish that children in hospital should have one-to-one teaching provision, but, frankly, that seems to us to be unrealistic. Therefore, the Government need to say how much they are prepared to ask LEAs to pay for education in hospital.

The Government's amendments, for their part, do not seem to take account of hospital schools, although the financial problems that they face may be covered by Clause 255 ("Inter-authority recoupment"). The problems with hospital schools seem to be London problems, following the abolition of ILEA. There are hospital schools in all our greater metropolitan cities that have achieved a happy relationship with their maintaining LEA and they do not report any significant problem in their financing.

However, that is not the case in London; for example, there have recently been press reports that in one hospital school the maintaining LEA has decided to reduce the staff from 12 to six without there being any apparent reduction in the caseload of the school. One of the reasons given for this reduction is the difficulty that the LEA has of collecting the money from the home LEA of pupils in the hospital school. In putting forward these amendments, I hope that in her comments the Minister will be able to clarify the Government's position on hospital education and on how it will be properly financed. I beg to move.

Lord Addington

I rise briefly to support the amendment of the noble Lord, Lord Judd. It appears to me that special schools that are attached to hospitals would be far better off if they were attached to local authorities as there are constantly changing demands on them in terms of their pupils' needs. An LEA would surely be better placed to meet this constantly changing demand. On those grounds alone, surely the amendment of the noble Lord, Lord Judd, is sensible.

Lord Young of Dartington

I am pleased to be supported in my amendment by the noble Baroness, Lady Masham, the noble Lord, Lord Kilmarnock, and the noble Baroness, Lady Cox. The noble Baroness, Lady Cox, had to leave earlier and she asked me to apologise for that but she has to go to Poland early tomorrow morning. She assured me of her full support for this amendment.

I begin by thanking the noble Baroness, Lady Blatch, for the consideration that she and the Secretary of State have given to this matter since the Second Reading despite the 1,001 problems the Minister has had to deal with. I also wish to thank the officials in the Department for Education, who have wrestled with what is admittedly a difficult matter, and the many devoted hospital teachers who have helped myself and my colleagues.

I want to put the general case for this amendment to the noble Lord, Lord Judd, in particular, and to my noble friends as well as to Members on the other side of the Committee. That case is that the Government should make the educational service for sick children hospital-based rather than LEA area-based.

I illustrate the case by reference to a particular boy, James Warham, whose parents have, I gather, also written to the noble Baroness, Lady Blatch. James's parents have given permission for his name to be used in this debate. James shows how vitally needed is an educational service for sick children. He lives in the borough of Haringey but has for many years been a patient at Guy's hospital in the borough of Southwark. He has chronic renal failure and has to attend Guy's hospital three times a week for dialysis, which takes about 20 hours a week of his time. Over most of his life the famous Evelina hospital school at Guy's has received excellent support from ILEA, and as a result of that James is now coming up to his GCSE. If he does not get it, his parents fear that he could be on the dole for life. Qualifications are even more important for handicapped children than for non-handicapped children.

But the Guy's school is now the prime responsibility of Southwark Council and that council last week took the decision to cut down the staffing by about 50 per cent. at another great hospital school in the same borough for children with psychiatric problems at the Maudsley Hospital. Are cuts at Guy's also on the way as they are rumoured to be? If they are, Guy's school could be crippled and there could be nothing there for children from Haringey or from any other part of the country. Even if Southwark keeps up its payments, there is the business—the noble Lord, Lord Judd, mentioned this—of Southwark recouping the costs for James from Haringey Council.

In some parts of the country this business of reimbursement is proving an obstacle to proper education for sick children. Some Members of the Committee may have received a submission from the organisation Action for Sick Children in which reference is made to the action of Cumbria County Council in announcing that children treated in hospitals outside Cumbria—which is a considerable number—should not be provided with schooling unless prior written approval has been given by Cumbria. Such bureaucracy will inevitably cause delay, as it already does, in children receiving education in hospital which should be part of their rehabilitation and their rights as citizens. That is happening elsewhere as LEAs which are strapped for cash try to make ends meet.

The Government have decided—and the two speakers who immediately preceded me seem to agree—that the whole problem should be managed by replacing the power of LEAs to provide education for sick children by a duty. That is evident from a new amendment—Amendment No. 301A—which the noble Baroness, Lady Blatch, has tabled in the past few days. That could bring about some improvement but not enough so long as the duty is to be pushed on to LEAs. Most LEAs have already been too knocked about by the Government to jump to it when they are required as a duty to do something of this kind, which for some will mean doing something they have never done before. They will ask what use is a duty without resources, and there is no sign of any additional resources. That is the first serious fault with the Government's position.

Not all of the 600,000 or so children who are hospital in-patients in a year are away from their ordinary schools long enough to require special provision; but many are. Whether they receive any education depends at present upon the whim of geography. Some LEAs do nothing, others have one home tutor and no hospital schools. Thirty-eight per cent. of hospitals in the country with children's wards have no teaching service, and the provision of home tutoring is patchy, to say the least.

To remedy that extreme geographical injustice will require a new start, and in some cases a start from zero. But how is it to be done? How can one envisage that LEAs will be able to jump to do the job? Even though they will receive guidance, which I welcome, I do not believe that it will be possible for there to be enough precision about the new duty to make it stick. What standard of education will LEAs have a duty to provide for sick children: one home tutor for a whole county or a series of hospital schools? I am afraid that there will be endless argument and no doubt also court cases.

The other grievous fault with the Government's position is that sick children are being lumped in with disruptive children who have to be excluded from schools. All are to be looked after together by LEAs in accord with their new duty. But the needs of the two types of children are quite different and they should surely not be lumped together.

It appears to me that the situation in that respect has become worse since Second Reading. The Government appear to be proposing in Amendment No. 301A that hospital schools which are not already special schools, such as, for example, the North Tyneside General Hospital School as it is called although it is not a special school, should in future be called "pupil referral units" and subject to discipline and all kinds of inappropriate rules which may be suitable for truants but not for the sick. It is as though hospital schools, too, are to be "sin bins", as the pupil referral units will no doubt continue to be called. In the past it was sometimes thought that sickness is due to sin, but that was many centuries ago.

My amendment goes in the other direction, on the premise that education for sick children should be hospital based rather than area based. Mr. Eric Forth, the Schools Minister went a good way towards recognising that area boundaries should no longer be of such importance in his comments last year on the Greenwich judgment. In another place he stated: With the increasing delegation of power and influence to the school from the LEA, and in particular with more and more schools taking grant-maintained status and opting out of LEA control, the school and its local area are now of much more relevance than the LEA boundary. It would be odd to seek td reinforce such boundaries at this stage". I wholeheartedly agree with Mr. Forth and believe that it is even more odd to reinforce such boundaries for sick children instead of basing the service on hospitals which can have children from all over the place, and across numerous LEA boundaries. The money should surely follow the child, to use one of the clichés of our debate, and not have to cross over LEA boundaries on the way.

The argument for hospital schools is strong as the foundation of an educational service for sick children. There are four specific reasons.

First, a school is recognised as the nub of the educational system. Everyone knows what a school is. Secondly, hospital schools have full-time teachers on their staffs with an understanding of their special tasks. They know from experience the best ways of helping a seriously ill child whose response to education may be intermittent and unpredictable but for whom the teachers should be available when needed. The hospital teachers who have to interact with the medical staff know most about the problems generated by an illness and are therefore in the best position to draw up a curriculum plan for each child related to the national curriculum. They are also best placed to train and, up to a point, to supervise the part-time home tutors whose experience has previously been in ordinary classrooms. Thirdly, a hospital school, whether or not made up of units, can have enough teachers to cover both primary and secondary stages and the main subject groups.

Fourthly, it is not much use a hospital school drawing up a curriculum plan unless it is carried through when the child leaves the hospital in the period of convalescence. That is more likely to happen if the home tutor is on the staff of the hospital school.

All those reasons favour hospital schools as the nub and heart of the service. They all point to the advantages of grant-maintained status being open to such schools, whether or not they are already special schools. If the new funding agency were responsible for the funding, they would have to work to a national policy which does not exist now, and is so much needed, whereby it would be decided which hospitals, and groups of hospitals, should have schools, in particular which should have new schools, and how the home tutoring service should be organised around the schools. The new National Association for the Education of Sick Children, which we hope to set up partly as a consequence of the Bill, will be ready to advise on such a plan and, all being well, will be heard from before the Bill has left this House.

Finally, I have to acknowledge that despite all the arguments I am—I believe with the Minister—in a paradoxical position on the amendment. The two sides of the House have, as it were, changed places. The whole drift of the Bill, and of the Minister's arguments on its behalf, is to promote grant-maintained schools. Yet the Government are turning their back on possibly over 100 new hospital schools which would wish to become grant maintained, and saying, "No, we don't want you. The job must be one for LEAs, so the scope of LEAs needs to be enlarged". Perhaps equally strangely, my position is to the contrary. I am generally opposed to ordinary grant-maintained schools and I am a strong supporter of LEAs with their often dedicated administrative staff and their unrivalled knowledge of local conditions and needs. But in this very special case that I have been arguing I believe that grant-maintained status could be of special benefit for the education of sick children. I have therefore had to modify my main position and give hospital schools, which are not already special schools, the option of GM status, but just as an exception.

I hope that my colleagues on these Benches—even the noble Lord, Lord Judd, himself—will bear with me, and that the noble Baroness, Lady Blatch, will not see my olive branch as a dagger just because it comes in the first place from this side of the House. It is certainly not meant to be.

I hope that the Minister will be able to say, not that the detail of the amendment is right, but that she is prepared to take it back and have another look at the whole matter and that she will show some flexibility of mind when the issue comes back to this Chamber. If she is able to do so, there will be a wide body of support among many devoted teachers and others who agree with Her Royal Highness Princess Diana when she spoke two days ago about sick children in her capacity as president of the National Children's Hospital at Great Ormond Street, which is at present the special responsibility of the London Borough of Camden. She spoke of the need, to encourage and guide, to nourish and nurture, and to listen with love to their needs in ways which clearly show our children that we value them. They in their turn will then learn how to value themselves". I beg to move.

Baroness Masham of Ilton

In supporting the amendment, I have had to consolidate what I was going to say because the time is so late. It is very unfortunate that such important amendments come at this late hour. There is great concern on the part of many people, including teachers, some of whom have taken early retirement, over the many changes in health and education. One example is that of the trust hospitals, which have started charging for hospital school premises. Amendment No. 228 deals with the most brave and deserving children in our country, children with leukaemia, renal disease, muscular dystrophy, spinal injury, severe burns and numerous other problems.

Let us think for one moment of a recent orthopaedic tragedy: a girl who recently lost two of her friends when they walked back from a sweetshop and were killed by a driver. That girl now lies in a hospital in Teesside with both her legs amputated. She has to pick up the strands of her life, and education will help her do that.

Our amendment aims to remedy the lack of consistency in the education of sick children. It also tries to put a positive direction in the Bill. I hope that the proposal of a hospital-based and medically referred home education service will produce a more ordered system than the present, rather disjointed one. The last research on hospital schools showed that provision is very varied and patchy, ranging from 28 per cent. to 76 per cent., depending on the location of the hospital.

I feel that the amendments of the noble Lord, Lord Judd, are rather too narrow. Many children with specialised conditions often go to hospitals far from their home. They go to supra-regional specialising centres; they may be extra-contractual referrals. Education brings normality and continuity to those children.

Children in hospital vary greatly in ages and educational ability. Some will be taking examinations; others will be at the primary stage. There needs to be flexibility. Hospitals do not fit into local authority districts. That, I fear, is one of the problems with the amendments of the noble Lord, Lord Judd.

We have heard a lot from Ministers, particularly health Ministers, about the money following the patient. I should just like to know whether in this case the money will follow the patient. These are children and very important patients.

Lord Kilmarnock

I rise briefly to support Amendment No. 228. I respect the intention of the noble Lord, Lord Judd, but I believe that the noble Lord, Lord Young, has chosen a better route. The main question, as the noble Lord, Lord Young, said in the briefing on his amendment that he circulated, is: LEA or hospital school? He gave very good reasons why hospital based schools or clusters of hospital units serve the needs of children better. A real school with an identity and outreach facilities will be better than a dispersed LEA service. The noble Lord, Lord Young, said that the concept of the school was the nub of the issue. I think he was right.

A number of briefings have been circulated on this group of amendments advocating different solutions. Action for Sick Children wants to place a duty on the LEA to provide education for such children in order to bring children sick in hospital into legislative parity with children with special educational needs, which in fact they do not enjoy at present. On the other hand, it is rather persuasively argued by the National Standing Conference of Hospital Teachers that the burden of excluded pupils that LEAs are increasingly having to pick up will: leave insufficient funds to provide education for what could arguably be described as a sizeable and silent proportion of the most vulnerable group of children in the education system—those who are medically incapacitated". The same paper goes on to call for: the creation of a structured, coherent, non-bureaucratic, amalgamated hospital and medical home education service". I agree that that is a bit of a mouthful, but that body states earlier on and rather more simply that the suggestion of grant-maintained status for this branch of the school system is visionary. I repeat the word "visionary". I rather reject the suggestion of the noble Lord, Lord Judd, that it would be more cumbersome or more bureaucratic than what exists at present.

On practical grounds I therefore support the amendment proposed by the noble Lord, Lord Young. But I am also attracted to it on other grounds. In using the combined concepts of the grant-maintained school and the possibility of clustering, it works within the spirit of the Bill, as he suggested. I think that that is clever and constructive. It makes it more difficult for the Government to resist.

I am also intuitively attracted to the amendment on the ground that it seeks to loosen up a little the rigidities and time hallowed categories of the system. It addresses a particular, very special and rather complex need and endeavours to find a solution for it within the framework of the Bill—as the noble Lord speaking for his amendment suggested. I like that because it is a useful pointer to the direction in which the Government should go.

I do not want to muddy the waters of the noble Lord, Lord Young. He has a special limited objective and I support him fully in trying to achieve it. But I hope that it may also be the beginning of the opening up of the Government's mind toward greater flexibility in the creation of new types of school for various types of need, which will be the subject of later amendments during the course of the Bill in this Chamber.

So I hope very much that the process will begin here and that the Government will give a very sympathetic hearing to this batch of amendments.

12.45 a.m.

Baroness Blatch

I am grateful to the Committee for the contributions to this important debate. As the noble Baroness, Lady Masham, said, it is late and that is not at all satisfactory. However, we probably went round the houses rather too much earlier in the day.

I know that the noble Lord, Lord Young, has taken a particular interest in these matters and has commissioned some impartial research. I have listened extremely carefully to the arguments. The Committee will have to forgive me, but I find the support wholly inconsistent in that noble Lords have totally and consistently opposed grant-maintained status—after all, it is a form of self-government and there is no intellectual defence for approving it for these schools and not for any others. What is the difference? I am at a loss to understand the logic of the noble Lord's argument.

Baroness Masham of Ilton

Is it not that trust hospitals are now self-governing, and therefore it sounds as though it would be sensible to have the hospital school self-governing?

Baroness Blatch

Noble Lords opposed self-governing hospitals too. It is the inconsistency I find difficult to understand. We are talking of hospitals right across the country and many are not self-governing. I find an inconsistency in the notion that self-government should apply to this specific sector—with its problems which are not as straightforward as schools that are to become self-governing—and not others.

Lord Kilmarnock

Perhaps I may interrupt the noble Baroness, though I know it is pushing one's luck at this time of night. This is, in fact, a cross-party amendment. If the noble Baroness will cast her mind back to the speeches at Second Reading, she will recall that not everybody whose name is attached to this amendment was necessarily opposed to grant-maintained status, and I count myself among them. So I slightly resent what the noble Baroness said.

Baroness Blatch

I am talking of noble Lords who, in the course of this debate, said that they oppose grant-maintained status but for this specific purpose they believe it to be a good idea.

I am glad to be able to assure noble Lords that the Bill before this House will lead to a better co-ordinated and more responsive regime for the education of sick children. The department, in consultation with all those concerned, will be taking steps to ensure that this is so. But I choose my words "better co-ordinated and more responsive" with care. A uniform regime would not be appropriate, given the variety of the needs and circumstances of sick children. The objective for their education should be a common one. The means of delivering that objective will differ for each child and from hospital to hospital. The Bill makes two important changes to improve the current situation.

Not much has been said about parents' views in the matter. I happen to be somebody who had a child who died one month before his 15th birthday and who spent some time in and out of hospitals. I have to say that I would have been distraught if I had gone into hospital and found teachers sitting at his bedside on those days when he was probably well enough to do other things. It seemed to me that I should have had a choice in deciding whether or not he should be taught during those periods.

First, special schools established in hospitals will be able, once necessary regulations have been introduced, to opt for self-governing status. They include equally eminent institutions across the country. Self-governing status for a hospital school will be a helpful option for those schools which may consider they have the management and other expertise that they will need to make a go of things without the day-to-day supervision of an LEA. It could offer them greater freedom to manage their own affairs and run their own budgets, obtaining better value for money from the resources available to them.

The Bill offers a second important benefit for the education of sick children. As noble Lords are aware we have tabled a number of amendments to the Bill which will replace with a duty LEA's existing powers to secure the education of pupils otherwise than at school. That duty will apply to the education of sick children alongside those who may opt out of school for less worthy reasons and will require LEAs to develop and implement a coherent and considered policy for their education, setting that within the context of their schooling as a whole. The department will prepare guidance on the operation of the new "education otherwise" duty in so far as it affects the education of sick children, whether at home or in hospital. Continuity should be achieved through close liaison between the school, the hospital and the family. That should be the case whether or not formally constituted hospital schools exist in the area in question.

Perhaps I can say to the noble Lord, Lord Young, that there is no question of "education otherwise" in hospital being known as "pupil referral units". That was his expression not mine. "Education otherwise" in hospital will be part of the local authority's sick children's service.

There is, I believe, a substantial degree of agreement between us on these matters. We agree that those who work on behalf of sick children do an admirable job which may not have been sufficiently recognised in the past. We agree that the ability to acquire self-governing status will contribute to improving provision for children in hospital. The noble Lord has pointed to what he sees as a degree of variability between local authorities in the extent to which they provide education outside school for children who are sick. But I hope we agree that the reform of the provision of education otherwise than at school, backed up by the guidance which we shall issue on the education of sick children, will serve to secure better co-ordinated and more coherent provision for these children.

I must, however, take issue with one of the fundamental premises underlying the noble Lord's amendment. He takes the view that self-governing hospital schools should take over from local education authorities as centres for supervising the long-term education of sick children. He believes that in effect such schools should become centrally funded sick children's services. He has explained his view that hospitals, with their acquired knowledge of children's needs and case histories, are better placed than LEAs to undertake the central co-ordinating role. He argues that promoters should be able to establish schools in hospitals where teaching is provided as education otherwise and that those schools should have general responsibility for the education of sick children in the area.

This is a radical and forceful idea but I believe is misconceived. I take the point that while a child is in hospital the teaching staff there will be uniquely placed to judge his educational needs, informed in part by their knowledge of his medical condition. But we must bear in mind the need for continuity between the child's mainstream school, his education while at home and his education in hospital. It is the LEA which is best placed to take a long-term, overarching view of the education of any given sick child, encompassing the school, the home and the hospital. As the grant for GM schools is recovered from the LEA, the kind of regime which the noble Lord has in mind would reduce the amounts available to authorities for the provision of education otherwise and significantly lessen their scope to do so in cost-effective ways which took account of opportunities for financial planning and economy of scale.

In summary, I understand the force behind the noble Lord's arguments. He shares our concern to achieve the most we can for sick children who have to spend a good deal of their time outside school. I also find it gratifying that, in this context at least, he shares our general belief in self-governing status as a way forward for maintained schools. But I do not share his view that the self-governing hospital school is the appropriate place from which the education of sick children outside school should be overseen and co-ordinated. Their education is properly part of a continuum. Hence the importance of the new general duty on LEAs to which I have referred.

We have set in hand measures for this group of children. These break significant new ground. We must give them a chance to work.

I suggest that Amendment No. 227F in the name of the noble Lord, Lord Judd, is unnecessary. It is open to local education authorities to serve notice of proposals under Clause 173(2) for the setting up of a hospital special school where the educational provision was previously in the form of a unit. For the reasons I have already explained, it would be inappropriate to provide for units in hospitals which currently had the status of education otherwise to be able to apply direct to the Secretary of State for the status of special school or to be accorded that status automatically. The local education authority, with the central role which I have described, must be the most appropriate body to judge the circumstances in which such action is necessary. I therefore hope that the noble Lord will see fit to withdraw this amendment.

I have given your Lordships assurances that under this Bill the education of children in hospital will be safeguarded. I have said that it will lead to a better co-ordinated and more responsive regime, and I choose those words with care. A uniform regime would not be appropriate, given the variety of the needs and circumstances of sick children. The objective for their education should be a common one. The means of delivering that objective will differ for each child and from hospital to hospital. I hope that these amendments will not be pressed tonight.

Lord Judd

Again, we have had a courteously full reply from the Minister, which I am sure we all appreciate. I believe that this is much too important a debate to hold at one o'clock in the morning and it would be unreasonable to pursue the matter to a Division in the small hours.

I believe that we all wish to put on record our genuine appreciation to my noble friend Lord Young, not only for what he has said tonight but for the forthright and imaginative way in which he has brought to the attention of the nation a very real problem and challenge and the dangers that face both children and the committed staff who work with them in the hospitals. I cannot say too powerfully how important my noble friend's stand has been.

There is no difference across the Floor of the Committee about the importance of this issue and the need to respond to it convincingly. The issue is how we do it. I ask my noble friend to think a little more deeply about our own approach. What we have consistently argued from this side of the Committee during long sessions on the Bill is that our approach to education is a community approach. We believe that the local community is terribly important in the nation and that children in hospital are a sensitive part of community responsibility. To contract out of that sense of community responsibility and make some special ad hoc administrative arrangement would be unfortunately remiss in our general position.

However, as it is clear that we shall not pursue this to a Division—I do not know whether my noble friend will pursue his amendment to a Division; that is his choice—perhaps I may say to the Minister that there is an issue here. There is a problem of funding, there is a problem of acute pressure and of cutting staff when we should be talking about how the service is improved. I wonder whether, in perhaps a word or two, she will give an indication that she will look hard at the issue and say whether she is prepared to consider direct funding to preserve the role of education in hospitals or, if she is not prepared to do that, whether she will, with her tough approach to so many matters, intervene to ensure that the arrangements for recoupment where there are hospitals that take children from a wide area are made effectively to apply.

Baroness Blatch

Perhaps I can help the noble Lord. We announced last month our intention to do away with financial recoupment for the majority of pupils who receive education outside of their home LEA. Clause 255 of the Bill gives the Secretary of State power to do that. The future funding of hospital provision must be considered as well in this context. The Government will shortly publish a consultation document on recoupment which will seek the views of everyone on this point.

Lord Young of Dartington

I thank my noble friend and the noble Baroness for what they have said. I agree fully with my noble friend about the importance of education being in the community and responsible to the community. But I put it to him that those sentiments do not apply with any great force to the education of sick children. It is partly because children go from all over the country to hospitals perhaps hundreds of miles away. They go from North Yorkshire to hospitals in Newcastle, from Cornwall to hospitals in Bristol, and so on, according to their health needs and where they will get the best attention. That being so, the ordinary considerations that apply to educational policy cannot really apply to this sphere.

The noble Baroness, Lady Blatch, asked how I could be so inconsistent, as she claimed I was. I am not, in my own view, any more, I imagine, than she thinks herself inconsistent. I am against grant-maintained status for ordinary schools because there is a system of which I do on the whole approve which covers the whole country. To take ordinary schools out of the control of the LEAs is potentially to destroy what is good and what is already there. In the case of education for sick children, there is no system. It is patchy and there are many holes in it. It needs to be built up almost from scratch.

I agree that at this stage of our proceedings we should not continue further to accuse each other of inconsistency. I plead again that the Minister be prepared to engage in some fresh thinking on what she in her remarks admitted was a very difficult matter. I hope that fresh thinking might be able to come through even before the Bill is enacted.

Amendment, by leave, withdrawn.

[Amendment No. 227G not moved.]

Clause 172 agreed to.

[Amendment Nos. 228 and 228ZA not moved.]

Schedule 10 agreed to.

Clause 173 [Establishment, etc. of maintained or grant-maintained schools]:

Baroness Blatch moved Amendments Nos. 228A and 228B: Page 103, line 29, leave out ("References in this Part of this Act") and insert: ("In this Part of this Act— ( ) references"). Page 103, line 31, at end insert ("and ( ) references to an alteration to a school include the transfer of the school to a new site.").

On Question, amendments agreed to.

Clause 173, as amended, agreed to.

Clause 174 [Procedure for dealing with proposals]:

[Amendments Nos. 229 and 230 not moved.]

Clause 174 agreed to.

Clause 175 agreed to.

Clause 176 [Maintained special school becoming grant-maintained special school]:

The Deputy Chairman of Committees (Lord Skelmersdale)

I now call Amendment No. 230A in the name of the noble Duke, the Duke of Norfolk.

Lord Northbourne

Amendment No. 230B comes before Amendment No. 230A in the Marshalled List.

Noble Lords

It does not.

Lord Northbourne

It is grouped for it. However, I shall move Amendment No. 230A. Page 105, line 22, at end insert: ("( ) Additionally, regulations may make provision for non-maintained denominational special schools to become grant-maintained special schools. ( ) Regulations shall require, before a non-maintained denominational special school becomes a grant-maintained special school in pursuance of the regulations—

1. (a) the submission to the Secretary of State of proposals for the purpose by the governing body of the school, and its trustees, and
2. (b) the approval of such proposals, as originally submitted or as modified by the Secretary of State (whether before or after they are approved).

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

1. (a) Chapter II or III of Part II of this Act,
2. (b) section 174 of this Act, or
3. (c) section 249 of this Act,

with or without modification.". The noble Lord said: Clause 17.6 provides that by regulation, maintained special schools may become grant-maintained special schools. There is no equivalent provision on the face of the Bill for non-maintained denominational special schools.

There are 17 Roman Catholic non-maintained special schools meeting the needs of about 1,200 children who are sent to these schools by a number of LEAs, including authorities remote from the schools themselves. Their fees are competitive and most of these schools receive children from more than one LEA. Why then should they not be considered as candidates to be taken into the national family of grant-maintained schools?

A number of these special schools now report that in some instances LEAs are increasingly reluctant to refer Catholic pupils to them because they need these children to fill their own LEA special schools despite the fact that that may not be in the best interests of the children. If the policy of the Government is genuinely to secure the best and most appropriate provision for children with special educational needs at the most competitive cost, surely it is reasonable and sensible to ensure that their family of grant-maintained schools is developed by taking from the best of the existing schools, whatever their current status may happen to be.

If the Government believe in choice and diversity, surely they should aim to maintain a variety of denominational provision in this delicate area of special schools where sensitivity, familiarity and loving care are so important to the children. I beg to move.

Baroness Blatch

I am assuming that the noble Lord, Lord Northbourne, is speaking just to Amendment No. 230A?

Lord Northbourne

Yes.

Baroness Blatch

There are some 74 non-maintained special schools of which I believe some 21 would count as denominational schools. I believe that about 11 of those are Catholic schools. Nearly all the others have a non-denominational Christian ethos. All are associated with major charities, including the Royal National Institute for the Blind, Barnardos, and other such organisations. It would be impossible in terms of the character and the type of special provision which all these schools make to distinguish between the case for denominational and 'nondenominational non-maintained special schools becoming grant-maintained; and where could the line be drawn? There are very many independent schools which are approved to cater for children with special educational needs. It would be very hard to justify excluding these from the opportunity to become grant-maintained special schools if we accepted this amendment.

Let me explain the general case why the Government believe, after very careful consideration, that non-maintained special schools should not be able to become grant-maintained. Non-maintained special (and approved independent schools) should continue to be substantial providers of publicly funded special education if they provide efficient education, meet the demands of parents and attract custom from LEAs. There is no need therefore for such schools to become grant-maintained. They are part of the system already. Their future is properly controlled by the market and not by the Government or their agencies, which would be the case if they became grant-maintained. Non-maintained special schools embody the long-standing voluntary contribution to special education, and should continue to do so.

An essential thrust of our policy to allow local authority-maintained schools to apply for self-governing status is that they will be able to seek autonomy in running their own affairs, which is already the lot of non-maintained special schools. This argument cannot apply to non-maintained special schools: they already enjoy this freedom. I know that it is very late, but I hope that the noble Lord will not press the amendment.

Lord Elton

I do not want to prolong things, but I am puzzled by subsection (1) which makes provision for the Secretary of State to approve a special school not being a maintained or grant-maintained school. I assume that there is some reason why that does not give the access which the noble Lord, Lord Northbourne, understandably wanted.

When my noble friend returns to this on Report, I hope that she will bear in mind - it is scarcely fair to ask her to do so now—that earlier she was speaking to the Committee about the apartheid that had sprung up between the independent and the state sector in education and the need to fill that gap. It seems that what the noble Lord, Lord Northbourne, is suggesting goes some way towards filling that gap and would not be something that one would wish to resist in principle.

Baroness Seear

I absolutely hate to prolong things, but if a school is in relative financial difficulties, can it not then apply? Supposing that it went completely broke, the Government would have to take it on -would they not? - because they have an obligation regarding the education of those children. Does it not make sense to say that they can enter and have some of the funding provided through this system, instead of being told that they cannot enter it in any way?

Baroness Blatch

Perhaps I can clear up the two points raised by my noble friend and the noble Baroness, Lady Seear. If those schools are losing customers and are not receiving children, that is usually because the LEAs are not sending children to them. The main providers of children to non-maintained special schools are the local authorities. They are the ones using them. Their record is good and I believe that it will be strengthened under the Bill.

Grant-maintained status is self-governing status. These schools have wholly self-governing status. If a self-governing grant-maintained school within the system equally started to lose customers, it too would be in trouble, and if it lost them to the degree where it was a serious problem it would actually close. So the effect would be the same where customers were lost. There would be no question of an LEA funding a grant-maintained school without having children there. The money follows the child. It follows the child into a grant-maintained special school and it follows the child into a non-maintained special school. Therefore, the degree of self-government is slightly greater for non-maintained special schools.

Lord Northbourne

I thank the noble Baroness. If I may say so, her last point was a very good one. Although there are issues that will need to be raised at Report stage in relation to ensuring that local authorities are absolutely fair in allocating pupils and do not give advantage to their own institutions because of pressure from trade unions or for any other reason, in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Northbourne moved Amendment No. 230B: Page 105, line 22, at end insert: ("( ) Where it seems to him to be in the interest of the pupils of the proposed school to do so, the Secretary of State may waive or vary the terms of this Act in relation to curriculum or premises.").

The noble Lord said: I rise to move Amendment No. 230B. I shall try to be brief but there is an issue here that needs raising. This is a probing amendment to find out the intention of the Government in relation to innovative educational methods for children with special educational needs. I am particularly concerned here about children with emotional and behavioural disturbances and particularly because so many of those children are often truanting.

To give an idea of the size of the problem, I have statistics here that 200,000 British children play truant every day; in urban areas one in five, and sometimes as many as one in three, of 12 to 16 year-olds play truant; seven out of 10 habitual truants leave school with no qualification; and 6 million people in the United Kingdom workforce are below recognised standards of numeracy and literacy such as to enable normal communication to occur. These are figures given by an organisation called Cities in Schools which I use as an example of the kind of situation to which my question relates.

This body, which at the moment is sponsored by Grand Met, Laing and certain other organisations, is a charitable organisation with a parent company in the United States. It uses an innovative method to pick up children who are truanting from school; help them to follow an educational programme and, with luck, get them back into the mainstream educational system.

Cities in Schools, as it calls itself, encourages parents to become involved in their children's development right from the start, and parents in turn are supported by volunteers and by the local community. A network of contacts is built around the children. Projects may be on site in an existing school or they may be off site in some situation which is less threatening to the children such as in one case a corner of a supermarket.

I want the noble Baroness, if possible, to satisfy me that the Act will enable such an organisation to obtain funding support in some way from government. I am concerned that an organisation of this kind, which is accessing charitable funds, should not use these funds simply to relieve the local education authority of its responsibilities to educate these young people with the taxpayers' money, which it is being given for the purpose, so that the local authority can simply put this in its pockets for more street lighting, or whatever else it may be.

Organisations which provide innovative, effective and economical education for this difficult and disruptive group of children should be entitled to their share of the taxpayers' money in one way or another, which would then be supplemented by the charitable money so as to enable them to extend their work to more and more of this needy group. One way this could be done would be to allow them to acquire grant-maintained status, and this could possibly be the best way. I should be grateful for any guidance that the noble Baroness can give me about the Government's attitude to this kind of situation, and I use that particular organisation only as an example. I beg to move.

Baroness Blatch

I can assure the noble Lord, Lord Northbourne, that the regulation-making power in relation to grant-maintained school status has been drawn widely to allow for particular circumstances. The general application of this Bill's enactments, as provided in Schedule 10, paragraph 14, means that the terms of this legislation can, if necessary, be applied with or without modification. Again, this will be done through regulations. The noble Lord will appreciate that I can give no guarantees at this stage that what he is seeking will be possible, but matters in connection with these regulations will be subject to the widest possible consultations.

The noble Lord raises another important point that is exercising all our minds at this time. He will also know that it is not as simple as just applying this part of the Bill, because so much about what causes truancy, or why children find it a better alternative to stand on street corners rather than being in the classroom, is subject to a number of other aspects of education. Nevertheless, we attach particular importance to regular school attendance. Schools should regard maximising attendance as one of their key tasks. We are helping by supporting projects to a value of some £9 million in 70 local authorities under the grants for educational support and training schemes for this year, 1993–94.

Money is being directed to those schools experiencing particular difficulty in maintaining high levels of attendance. Other organisations can also play their part, and Cities in Schools is, I know, doing some valuable work in the Tower Hamlets area of London. It is to be congratulated on its efforts to date. We are also working with City Challenge. We have recently built in an educational component to its work. There is much going on in that field, and I hope that the noble Lord will feel able to withdraw the amendment.

Lord Northbourne

Will the Minister give me an assurance that under some enactment the local authority will be obliged to make a contribution to that work?

Baroness Blatch

I cannot give a guarantee about that but between now and Report stage I shall give some thought to it to see what scope there is within this provision of the Bill, and I may write to the noble Lord.

Lord McIntosh of Haringey

Before the amendment is withdrawn, would the Minister care to advise the Committee whether it is proper for Back-Benchers to consult officials in the Box?

Lord Northbourne

I am grateful to the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 176 agreed to.

Clauses 177 and 178 agreed to.

Clause 179 [Provision of education at non-maintained schools]:

Baroness Blatch moved Amendments Nos. 231 to 233: Page 107, line 5, at end insert ("and that it is appropriate for the child to be provided with education at the particular school"). Page 107, line 6, at end insert ("the local education authority shall"). Page 107, line 7, leave out ("the authority shall").

On Question, amendments agreed to.

[Amendment No. 233A not moved.]

Baroness Blatch moved Amendments Nos. 234 and 235: Page 107, line 8, leave out ("in pursuance of the arrangements, and") and insert ("for him at the school"). Page 107, line 9, after ("school") insert: ("pay the whole of the fees payable in respect of the board and lodging, and ( ) if board and lodging are provided for the child otherwise than at the school").

On Question, amendments agreed to.

[Amendment No. 235A not moved.]

Baroness Blatch moved Amendment No. 236: Page 107, line 18, leave out subsection (4).

On Question, amendment agreed to.

Clause 179, as amended, agreed to.

[Amendment No. 237 not moved.]

Viscount Astor

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House adjourned at eighteen minutes past one o'clock.