HL Deb 11 December 1996 vol 576 cc1150-60

7.32 p.m.

Lord Campbell of Alloway

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

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

On Question, Motion agreed to. House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Burnham) in the chair.]

Clause 1: [Special educational needs: rights of children]:

Lord Pearson of Rannoch moved Amendment No. 1: Page 1, line 8, after ("child") insert (", excluding a mentally handicapped child.").

The noble Lord said: In moving Amendment No. 1, I shall speak also to Amendments Nos. 3, 5, 7, 9, 11, 13, 15 and 17, which are all in my name.

I should start by declaring an interest as the father of a mentally handicapped 16 year-old daughter. I should like also to congratulate my noble friend Lord Campbell of Alloway on his introduction of the Special Educational Needs Tribunal in our last education Bill. The very existence of that tribunal in the background has done much to encourage local education authorities and others to pay more heed to the real needs of special educational needs children and to the wishes of their parents.

Furthermore, I share the general sentiment expressed by my noble friend the Minister in a Written Answer in yesterday's Hansard at col. WA82 when he welcomed the tribunal's annual report for 1995-96 and applauded its work. It may be that I have not had time to read the report with sufficient care, but the tribunal does not seem to have found that the present status of the child, which this Bill seeks to change, has caused any great difficulty.

The purpose of the amendments is to remove, from mentally handicapped children only, the Bill's proposed new rights for children at all three stages of the tribunal procedure; that is, assessment, the tribunal itself and appeal. It should be clear that I am talking of statemented children with severe learning difficulties, who make up around 6 per cent. of the tribunal's workload, according to its annual report.

I tabled the amendments because, with the best will in the world, it cannot be helpful to the tribunal's activity to involve children such as my daughter in these processes. Such children will nearly always say what they believe they are required to say. If their parents are active on their behalf, then those parents' wishes should normally—indeed, almost always—be paramount. If their parents or a relative are not present, it should be for the tribunal to decide on behalf of the child.

I noticed that at Second Reading my noble friend Lord Campbell of Alloway had some difficulty with the definition of when a child might be of "sufficient understanding" to understand the new responsibilities proposed in the Bill. Indeed, such was that difficulty that my noble friend proposes in Amendment No. 2 to leave out from the Bill the expression, "if of sufficient understanding". If my noble friend's amendment is successful, as far as I can see it will mean that all children would become involved directly in the tribunal's processes, even though they were clearly not of sufficient understanding. That cannot be helpful, which is why I trust the Committee will accept my amendments.

Before concluding, I should mention the wider problem which lies behind the need for my amendments this evening. The problem stems from Clause 316 of the Education Act 1996, as it now is in its amalgamated form. The clause creates a qualified duty to educate all children with SEN in mainstream schools and not in special schools. When the Bill which introduced the clause was going through your Lordships' House, I did my best to resist it and to exclude mentally handicapped children from its scope. Indeed, there was a good deal of sympathy from all sides of your Lordships' Chamber for my view. I mention the issue now because there are signs that the clause is having the unfortunate effects which I foresaw at the time. It is relevant to this Bill because it is pushing too many mentally handicapped children towards ordinary schools which their parents often do not want and which therefore brings the tribunal into action.

The problem does not only affect mentally handicapped children. I understand that some 23 per cent. of the children at the troubled Ridings School in Yorkshire have special educational needs, including 5 per cent. with statements. However, this is not the time to debate the wider problem; perhaps we may do so when the new Education Bill reaches us. In the meantime, I beg to move.

Lord Campbell of Alloway

The interest declared by my noble friend Lord Pearson of Rannoch is understood with total compassion. The Committee will be grateful for his contribution which, as he said, is much based upon the situation of his daughter. But, on objective examination and on the advice of the noble Lord, Lord Rix—the Chairman of MENCAP—and that of my noble friend and sponsor Lord Renton (I am no expert) I am unable to commend Amendment No. 1 or its series of grouped amendments as being well conceived in the interests of mentally handicapped children.

This series of grouped amendments qualifies the effects of Clause 1 as proposed to be amended by Amendment No. 2 and the series of grouped amendments which stand in my name. It would curtail the intendment of the Bill according to its Long Title which, under Clause 1 as proposed to be amended by Amendment No. 2 and its group, confers on every child—my noble friend is quite right—with SEN the right of representation as it applies to all other child-related matters by excluding children with SEN who are also mentally handicapped. This exclusion is an exclusion from the core moral principle of Clause 1 as proposed to be amended by Amendment No. 2. It is not the basis on which this Bill was given a Second Reading. The basis on which this Bill was given a Second Reading was that the amendments which stand in my name and that of the right reverend Prelate the Bishop of Lichfield, should be carried into the Bill at Committee stage upholding the core moral principle, closing a loophole in the law and ensuring protection of the rights of every child with SEN. I am informed by the right reverend Prelate the Bishop of Lichfield and the right reverend Prelate the Bishop of Carlisle, who was in your Lordships' House today, that such is the view of the Church which supports this Bill as proposed to be amended, so that all children with SEN may be represented on assessment by the LEA, on appeal from the tribunal or to the High Court, by a friend or professional person in sympathy with the needs of the child.

The exclusion of children with SEN who are also mentally handicapped is totally unworkable. The range of mental handicap is extremely wide. It belies definition. There is no definition. There is a broad overlap. Many children with SEN have various degrees of mental handicap, so there is no logical or practical basis upon which the exclusion sought to he introduced by this amendment and the series of amendments may be implemented. Perhaps my noble friend may wish to consider whether this amendment, and in due course the series to which he spoke, may be withdrawn.

Lord Addington

The noble Lord's group of amendments is trying to address a problem with which we have already dealt, at least in principle: the idea that inappropriate, dogmatic reasoning should not guarantee the sort of help that is given.

However, the Bill seeks to ensure that all children have a chance of being given the appropriate type of education. With the noble Lord's amendment going through, we are aiming at a group who may not be obtaining help from their parents in the correct manner. It is the child's rights we are talking about here.

"Learning disability", to use the more currently favoured term of mental handicap, covers a wide group. There is no way any group in this field can be covered at one stroke without removing the vast majority who are not affected by the type of problems to which the noble Lord referred. I hope that he will be able to withdraw.

I accept that he may perceive a problem here, but I am absolutely sure from what has been said from the Dispatch Box and supported by many others in this House and in another place that the correct type of help being provided for individual needs will address most of the problems and fears to which the noble Lord referred.

7.45 p.m.

The Minister of State, Department for Education and Employment, (Lord Henley)

At an earlier stage I gave reasons why Her Majesty's Government cannot support my noble friend's Bill in principle. I do not think it is necessary for me to rehearse those particular arguments, but I would like to say a word or two about this amendment.

Again, the amendment down in the name of my noble friend Lord Pearson is one that I cannot support. I believe that the amendments themselves are possibly impractical and divisive and there would be problems of definitions in law as to how one defines mentally handicapped, how one chooses the definition and who shall determine this. The amendment itself gives no definition for that, but perhaps that is something to which my noble friend Lord Pearson will want to return at a later stage.

I also have to say to my noble friend Lord Campbell that I think his arguments about the practical difficulty of allowing appeals by mentally handicapped children would command wide support. But the very arguments that he has been putting forward show the flaws in the Bill's proposals to extend the right of appeal to children. That, for the reasons I gave at Second Reading, is one of the reasons why we could not support the Bill, but it is also one reason why we could not support these particular amendments to the Bill.

Lord Pearson of Rannoch

I am most grateful to all noble Lords who have spoken although I did not, in fact, agree with much of what has been said. For instance, I see no difficulty in defining a mentally handicapped child, as I said in my opening remarks, as one who has a statement saying that he has severe learning difficulties or, as some people prefer, learning disabilities.

It seems to me that the only objection to my amendment would concern mentally handicapped children whose parents, for one reason or another, are not available. I do not believe that that is a good enough reason not to accept these amendments. I think that these children are completely different from all other kinds of special educational needs children. Special educational needs is a very broad church: it includes the blind, the deaf, even the very gifted, although, of course, our local education authorities do not seem to pay an awful lot of attention to them.

But at this stage of the evening, and in order to advance our proceedings, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Campbell of Alloway moved Amendment No. 2: Page 1, line 8, leave out ("if of sufficient understanding").

The noble Lord said: In moving Amendment No. 2, I also beg leave to speak to all other amendments grouped in my name, which shall be formally moved as spoken to.

As mentioned when speaking to the previous amendment and the series, this amendment has the support of the spiritual Benches. It has the support of the noble Baroness, Lady Darcy (De Knayth) who alas, is unwell. She telephoned me this morning and is unable to be here. It has the support of the noble Lord, Lord Addington, who speaks for the Liberal Party. It also has the support of the noble Lord, Lord Morris of Castle Morris who, it is understood, may now be speaking for the Labour Party. It also has the support of many noble Lords on these Back Benches.

When speaking to the previous amendment, I also mentioned the reasons given by the right reverend Prelate the Bishop of Lichfield for the support of the Church, which he hoped might be acceptable to Government. The concept of this amendment and the series to which I speak was conceived on legal advice received and accepted at Dean's Yard.

Every child with SEN in his own right should be entitled to participate at the assessment stage, at the appellate stage before the tribunal and in the High Court and in his own right to be represented by a friend or professional person in sympathy with his needs. Restoration of such entitlement to the situation which obtained before the introduction of this regime may not be described as it was described by my noble friend Lord Henley as "inoperable" or "impracticable". I cannot quite remember what he said today but his opposition seems to be at this stage fairly entrenched.

The justification for this sole exception is simply not understood. He suggested at Second Reading that a situation of general application, which pushes a child with SEN into the spotlight of pursuing cases in the teeth of parental opposition and into the forefront of the appeal system, cannot be well conceived. That is nonsense. The reality of the situation is that in many cases there will be no dispute between the child and the parents. However, that in no way derogates from the principle of entitlement.

In this regard—I say this with respect to my noble friend Lord Henley—hope springs eternal that the Government may be prepared to think again and may be prepared to think again without care and without preconception. A statutory bar which disenfranchises the child so that only the parent may invoke the jurisdiction of the tribunal must be removed. As the noble Lord, Lord Addington, put it, the child has a right as an independent unit and not merely as an adjunct to the parent. As the noble Lord, Lord Morris of Castle Morris, put it, this lies at the very heart of the Bill.

This statutory bar operates, albeit in a few cases, where the child is adult having maintained majority. It is not only absurd; it is unacceptable. There is no legal aid before the tribunal. It could only be granted on appeal to the High Court to a next friend, which could include the parent, only if the Legal Aid Board considered there was a reasonable prospect of success. No amendment to the Legal Aid Act or the regulations is required.

This anomalous two-stage dispensation tilted only against children with SEN must end. On appeal to the High Court the child would appear—if not an adult with a parent or some other next friend—on a non means-tested basis as is the case with all other child-related matters. This group of amendments removing the qualification of "if of sufficient understanding" in Clause 1 with a consequential amendment to delete Clause 2 entirely disposes of the objection to the problems of definition and legalistic submissions in a user-friendly and informal environment. There is no way that this amendment or this group of amendments could undermine the concept that, as far as possible, the regime should be kept lawyer free.

The Government, having set up a statutory tribunal subject to appeal on a point of law which by judicial decision affords the same relief as judicial review, must assuredly recognise that this simply is not a no-go area for lawyers. It has also to be recognised that decisions of the tribunal have been reversed in the High Court. It is accepted that the grant of legal aid on counsel's opinion, given on inaccurate or inadequate instructions, has been fairly criticised in your Lordships' House. This is a general problem of serious concern which has already been referred to on the Floor of the House by my noble and learned friend the Lord Chancellor. It affords no ground for opposition to this amendment.

Lord Henley

Again, I do not think there is much I can add to what I said at an earlier stage in terms of my views about the Bill as a whole. For that reason I think my noble friend would accept that I cannot support any proposals which open up the right of appeal to the child in the way that my noble friend suggests and which could have considerable cost implications. That said, I believe that the amendments would remove a potentially very difficult issue; that of determining whether a child is of sufficient understanding.

For those who think that the proposals set out in the Bill and as amended by my noble friend's amendment—I stress that though I cannot support the amendment I have no intention of opposing an amendment to my noble friend's Bill—would restore an entitlement that existed before the establishment of the SEN tribunal, Ishould point out that things have changed considerably. What has changed is that we have replaced a two-tier bureaucratic system with an independent informal tribunal with expert members—my noble friend knows that tribunal and knows how expert it can be—that puts the needs of the child at the heart of its considerations. That is certainly very much a move for the better.

My noble friend implied that allowing appeals for children was very much a moral question. I have considerable sympathy with my noble friend's views. That is a very important point. The fact is though that we should bear in mind practicality when legislating. For the reasons given so clearly by my noble friend Lord Pearson, many—probably most—children with special educational needs are not so placed as to be able to respond independently to the statutory documentation of a statement. To ask them to do so would place them under unfair pressure. The approach of the tribunal that we have created under the 1993 Act to encourage various ways of hearing the child's views is the appropriate, right, proper and sensitive way to tackle this matter. To place the weight of statutory involvement on the child is not the right approach.

I wish to make one further point. My noble friend referred to the support of the right reverend Prelate the Bishop of Lichfield. It would be right for me to put on record that I received a letter from, if I may call him this, my own bishop—the bishop in whose diocese I live—the right reverend Prelate the Bishop of Carlisle to say that he was hoping to speak in favour of the right reverend Prelate's amendment, but, sadly, was not able to be here this evening as a result of having to return to that far outpost of the north west. I thought it right to put that on record so that all involved in the Bill would know that both the right reverend Prelate the Bishop of Lichfield and the right reverend Prelate the Bishop of Carlisle wished to speak and wished to offer their support, even if it was not in my interest, to my noble friend Lord Campbell of Alloway.

Lord Campbell of Alloway

I thank my noble friend for that concession. I have the letter from the right reverend Prelate the Bishop of Carlisle but I think it was very fair of my noble friend to mention it. He says that it is a moral problem. We all have a sense of morality. I did regard it as a moral problem and still do, but I am much comforted that a couple of bishops of my Church think it is too. I do not feel so alone any more.

Lord Addington

The noble Lord may well have won the moral argument. The Government seem to be objecting to the Bill on the grounds of cost and administration. The noble Lord's amendment clears everything away and gives us a good view of it. We can take some heart from what has been said. I hope that the Bill is taken forward and that it, or something similar, reaches the statute book very soon.

Lord Henley

I rise to speak just for the sake of the record because I object to what the noble Lord has just said. I did not base all my arguments on cost and administration. I based my principal arguments, if the noble Lord had listened to me, on the interests of the child. That is very important indeed and I want to get that on record. Having said that, obviously questions of cost and administration are also important. But the first interest—the interest of Her Majesty's Government and all other speakers—should be and quite rightly is the interest of the child.

Lord Addington

If I misinterpreted the noble Lord, I, of course, apologise. However, I think that further intervention rather emphasises the point I was trying to make.

8 p.m.

Lord Morris of Castle Morris

As convention requires, I begin by reminding the Committee that this is a Private Member's Bill, that the Labour Party takes a neutral stance on all such legislative proposals, and that I can only speak, therefore, on my own behalf and not on behalf of my party. But lest out of ignorance and infirmity, or out of malice and obstinacy it be misconstrued or depraved", let me assure the Committee that my party takes the issue of special educational needs and this Bill very seriously indeed. My honourable friend the Member for Sheffield Brightside, made this absolutely clear in a recent speech to the London Special Needs Books Conference outside the confines of the Houses of Parliament, and therefore I may quote from it. He said: The degree to which our education system is able to meet the challenges that learners with special education needs present is a crucial measure of the effectiveness of our education system. Children with special educational needs form a large proportion of the children in our schools … they must be able to access the most up to date information technology alongside good quality printed material. They must be offered the best possible policies to work with the best possible materials". It is with that degree of serious commitment that we on these Benches approach this Bill and the amendments before us.

I am happy to give my full support to Amendment No. 2, and to the other amendments in this group. It removes what some of us felt at Second Reading was an imprecision, and it clarifies the main thrust of the Bill. Legal argument about what is to be understood by a phrase like "of sufficient understanding" might perhaps have burgeoned and flourished, and introduced unnecessary distraction into tribunal proceedings. It seems to me that nothing substantial is lost by omitting the entire concept from the Bill, which will be the better and clearer as a result.

On this Bill—as on every other Bill that comes before us—Members of the Committee will have received a fair amount of briefing, some solicited and some unsolicited; some helpful and some less helpful. I must confess that my thoughts on Amendment No. 2 were greatly assisted by papers which I received quite unsolicited from Simone Apsis who wrote that she had, survived 10 years at a special school", and added: I would have welcomed the opportunity to represent myself at the special education needs tribunal. My parents forced me to attend a special school against my wishes. I would have liked the opportunity to make my views known and to put pressure on the local educational authority to send me to a mainstream school". It is precisely that situation which this amendment (and the Bill as a whole) proposes to address.

I cannot for the life of me see that the acceptance of the amendment would involve the Government in any financial consequences worth talking about. Neither can I believe that herds of wild, ravenous and starving lawyers are going to make a Gaderene rush to get their feet into this particular trough if the Committee were able to accept this amendment today.

In the nature of things, there are not going to be many cases of this kind. It seems only equitable that all children should be entitled to the benefits of this Bill, and the amendment is fully in accord with what I take to be at the heart of this Bill, namely, that the interests of the child must be paramount.

I am happy to support the amendment and I still hope that the Minister will, sooner or later, feel moved to accept it even if there is "trouble at t'mill" in Carlisle which deprives him of the presence of his bishop.

Lord Pearson of Rannoch

Before my noble friend replies, I simply repeat that if these words were taken out of the Bill then children who are clearly not of sufficient understanding will be entrusted with all these processes. I do not believe that that is acceptable.

Lord Campbell of Alloway

I do not believe that it is reasonable to reply.

On Question, amendment agreed to.

Lord Pearson of Rannoch moved Amendment No. 3: Page 1, line 10, after ("child") insert (", excluding a mentally handicapped child,").

The noble Lord said: This is a very brief probing amendment, of which I tried to give my noble friend notice this morning. Again, it is only aimed at mentally handicapped children. I am told that one of the disadvantages of the tribunal's procedure is that it is confined to considering educational issues, such as curriculum matters and so on, and cannot sufficiently consider the social aspects of the child's needs.

For most mentally handicapped children the social environment of their school is likely to be more important than more strictly curricular considerations. Most of the children of whom I am talking would be unable to attempt the national curriculum, for instance. So I am really asking my noble friend the Minister whether he agrees that the tribunal's remit might be widened accordingly to allow it to give more consideration to the child's social needs and general environment. I am not advocating that the composition of the tribunal should be altered in any way to achieve that and certainly not by the addition of any statutory social worker, for example. I am simply advised that the tribunal might sometimes reach a conclusion more sympathetic to the needs of mentally handicapped children and their parents if it could give more weight to social considerations. I beg to move.

Lord Campbell of Alloway

I happen to be in charge of this Bill. Perhaps it would be appropriate that, before my noble friend the Minister replies, I should very briefly say that I am advised, again by MENCAP and the two previous chairmen, that this amendment is not well conceived as in the best interests of mentally handicapped children. I have to rely on their advice.

Lord Henley

My noble friend Lord Pearson asks a general question as to whether the tribunal can go wider than simply the educational needs of the child. I would hope that the function of a tribunal should not be bound by the rigid nature of legal procedures and so on. The tribunal should consider the widest possible interests of the child. Obviously, as a special educational needs tribunal, the first interests will be educational. The extent to which other interests impinge on the educational needs of the child are matters which the experts on the tribunal will take into account where appropriate. The tribunals have worked very well indeed, as I believe most will accept, since 1993. With that explanation I hope that my noble friend will be satisfied. We are aware of his concerns, and the tribunal itself will consider such matters.

Lord Pearson of Rannoch

I am most grateful to my noble friend for that reply, which I believe may give encouragement to tribunals to widen their consideration in precisely the manner I hoped this amendment would achieve. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Campbell of Alloway moved Amendment No. 4: Page 1, line 10, leave out ("if of sufficient understanding").

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

On Question, amendment agreed to.

[Amendment No. 5 not moved.]

Lord Campbell of Alloway moved Amendment No. 6: Page 1, line 12, leave out ("if of sufficient understanding").

On Question, amendment agreed to.

[Amendment No. 7 not moved.]

Lord Campbell of Alloway moved Amendment No. 8: Page 1, line 13, leave out ("if of sufficient understanding").

On Question, amendment agreed to.

[Amendment No. 9 not moved.]

Lord Campbell of Alloway moved Amendment No. 10: Page 1, line 17, leave out ("if of sufficient understanding").

On Question, amendment agreed to.

[Amendment No. 11 not moved.]

Lord Campbell of Alloway moved Amendment No. 12: Page 2, line 5, leave out ("if of sufficient understanding").

On Question, amendment agreed to.

[Amendment No. 13 not moved.]

Lord Campbell of Alloway moved Amendment No. 14: Page 2, line 12, leave out ("if of sufficient understanding").

On Question, amendment agreed to.

[Amendment No. 15 not moved.]

Lord Campbell of Alloway moved Amendment No. 16: Page 2, line 14, leave out ("if of sufficient understanding").

On Question, amendment agreed to.

[Amendment No. 17 not moved.]

Lord Campbell of Alloway moved Amendment No. 18: Page 2, line 18, leave out ("if of sufficient understanding").

On Question, amendment agreed to.

Clause 1, as amended, agreed to.

On Question, Whether Clause 2 shall stand part of the Bill?

Lord Campbell of Alloway

I oppose Clause 2 standing part of the Bill as consequential upon the amendments that the Committee has made to Clause I.

Clause 2 negatived.

Clause 3 agreed to.

On Question, Whether Clause 4 shall stand part of the Bill?

Lord Pearson of Rannoch

I have already spoken to this matter in the group of amendments. I shall not speak against the Motion.

Clause 4 agreed to.

Clause 5 agreed to.

House resumed: Bill reported with amendments.