HL Deb 13 November 1996 vol 575 cc1005-20

7.37 p.m.

Lord Campbell of Alloway

My Lords, I beg to move that this Bill be now read a second time. It is cast in a form which is unintelligible without a series of side glances at the patchwork quilt of primary and secondary legislation which governs the regime for children with special educational needs under the Act of 1996. At this hour and on this occasion of Second Reading it would not be appropriate to indulge in any such exercise. But the purpose of the Bill is entirely straightforward and entirely clear.

Clause 1 confers status on a child with special educational needs if the child is of sufficient understanding which is collateral to that of the parent. Clause 2 provides machinery for resolving the question of sufficient understanding if it were to arise. Clause 3 is designed to maintain the status quo on review or otherwise pending appeal where the LEA has determined to amend a statement, to vary provision made in a statement or to cease to maintain a statement. It draws a distinction between interim provision and substantive decision in this regard which was not judicially recognised by the Court of Appeal in a recent decision in the case of Re M (1996), and in this respect changes substantive case law.

The main purpose of the Bill is to seek to confer upon the child with special educational needs the right to make representations, to receive notifications and to exercise rights of appeal if of sufficient understanding. By definition we are concerned with children with special educational needs under the age of 19 years registered as pupils at a school and with parents who need not be natural parents but who may only have parental responsibility or care of the child. There are many unfortunate circumstances in which a child under the age of 19 has little or no support from his parents, where the parents have lost patience or interest in the child, or where relationships have broken down. There are many cases where the child and his parents may disagree as to the appropriate educational provision to be made, school included, especially where the child is over 16 years and the parents are not his natural parents but have only responsibility and care, or if there is only a single parent. It is a situation not uncommon with children with special educational needs.

To clarify the situation, under this regime there are three stages: first, the assessment stage by the LEA; secondly, the appeal stage from the LEA to the tribunal; and, thirdly, the process of appeal from the tribunal to the High Court. According to laymen and lawyers—I put them in that order—who toil in this field, there are defects in this regime which work manifest injustice—hair cracks in the foundations which this Bill seeks to rectify.

As regards the first stage—the defects at the assessment stage—the Bill seeks to remove those defects (I seek to synthesise quite simply the complexity of the draft) by providing that if the local education authority proposes not to assess, not to make a statement, not to review, not to amend, or not to maintain a statement, then notice of such proposals must be given to the child who shall be entitled to make representations to the LEA in his own right and to appeal to the tribunal in his own right. That right of appeal to the tribunal will also be extended to the contents of the statement including any question arising as to change of named school on which, again, the child is to be afforded the right to make representations to the LEA. As a measure of safeguard, as regards amendment or cessation of statement by decision of the LEA, such decision, if notice of appeal is given, shall be stayed pending determination on appeal so that the statement shall remain effective. In substance, that is the simple explanation of the purpose of the remedial provisions affecting stage one.

As to the second stage, the tribunal is a statutory tribunal whose proceedings are governed by the Tribunals and Enquiries Act 1992 and by the tribunal regulations of 1995 (Statutory Instrument 3113). What I shall say will surprise your Lordships. I am telling the House how it is done and how it has been represented by laymen and lawyers to the Education Committee of another place. This is not a fairy story although it may sound like one. Under the regulations as implemented, the child does not normally attend before the tribunal. His views are not normally heard by the tribunal. If he attends, he does so as one of his parents' witnesses. If there are more than two witnesses, then it is only by leave of the chairman. He has no enforceable right to attend the tribunal. He has no enforceable right to speak to the tribunal even if of sufficient understanding. Concern was expressed in a memorandum. Under the Bill he would be given such right.

Appendix 19 to the second report of the Education Committee in another place, to which I have referred—it is available in the Library—was submitted by the Education Law Association and the London SEN Tribunal Group. The report states that there is a general reluctance to accept evidence direct from children, and that Children Act questions and the decisions of social services are not considered. Members of that association and group include barristers, solicitors, LEA and parent representatives, and educational psychologists. They took the view that the allocation of three hours was insufficient in many cases; that there was undue pressure of time; and that vigorous questioning by the chairman during the course of submission hindered the presentation and tended to confuse. Furthermore, regulation 15 was implemented in practice so as to inhibit the attendance of a solicitor before the tribunal if he instructed counsel. As appeal to the High Court is only on a point of law, such attendance is obviously essential in order that a proper note may be taken of the whole proceedings. The effect of such an inhibition is compounded by the requirement under regulation 30 that reasons for the tribunal's decision need only be in summary form, a lesser requirement than obtains for any other statutory tribunal.

Regulation 15 would in effect be annulled by Clause 4 of the Bill, and regulation 30 would be amended to remove this derogation from the provisions of the Tribunals and Enquiries Act as to the requirement to give reasons. It may well be that during the passage of the Bill other amendments to those regulations may be proposed by noble Lords in implementation of the Bill.

As to the third stage, and the defects arising there, it was decided judicially by the Court of Appeal in the South Glamorgan case of 1995 that as the tribunal was a statutory tribunal an appeal must be made under what is called Order 55 of the Rules of the Supreme Court and not under Order 53 applicable to judicial review. It was said also that the powers of the court under Order 55 were not more limited than those under Order 53. But the defect in this regime, which may only be rectified by primary legislation, is that the child with SEN unlike other children is in effect disenfranchised as all his rights vest in the parent.

Under Part IV of the 1996 Act, the child with special educational needs, unlike other children, was disenfranchised. As a result, all his rights vest in the parent. It is no longer possible for that child to appeal to the High Court through a next friend or parent with legal aid granted as of right across the board as in all other child-related matters.

Children with special educational needs are wholly dependent upon a parent whose means so often have to be set aside to pay for expenses, special provision or medical treatment for a long, unpredictable period of time; or the parents may be disinterested; or the parent may disagree with the child as to the appropriate educational provision; or it may be the parent with whom relationships have totally broken down. It is in that parent that the whole right of making an appeal to the High Court vests. The child now has none. Before this regime the child could go by judicial review to the High Court in his own right and as a matter of course legal aid was granted.

This is not a mere matter of money. The sums involved are of derisory consequence. It is no freebie bonanza for the speculative no-win, no-fee lawyer. There are no damages to cover any costs if there is a win; by judicial decision damages do not arise in this context. So there is no fear of encouraging speculative litigation. But safeguard for the interests of the children alongside those of other children is a question of principle; it is not just a question of money in any event. This is an anomalous two-tier dispensation as regards the interests of children which is tilted against those who are disadvantaged and have special educational needs as compared with other children who have no such disadvantage.

I apologise for having spoken at such length. It was accepted by my noble friend Lady Blatch and by the House when this regime was before us in 1993 that it was experimental and that if problems arose in the course of implementation remedial measures would be introduced in subsequent legislation. That was the clear understanding. The injustices to which I have referred, in particular that of disenfranchisement of the child, vesting its rights in the parent and the consequences to which I referred, were not foreseen by me. They were not foreseen by my noble friend Lady Blatch, not foreseen by any noble Lord in this House and, looking at Hansard, not foreseen in the other House either. I have spoken to my noble friend Lady Blatch.

If your Lordships are satisfied that there are defects in the regime, I ask that we give the Bill a Second Reading in the hope that the Government will come forward, honour their undertaking and not oppose it. I commend the Bill to the House.

Moved, That the Bill be now read a second time. — (Lord Campbell of Alloway.)

7.55 p.m.

The Lord Bishop of Lichfield

My Lords, I strongly support the noble Lord, Lord Campbell. There is a question of just principle here. I have one concern. The noble Lord's remarks about the first stage may have resolved it; however, because I am not clear and have not had time to make it clear, I wish to raise that concern. It hovers around the words, the child if of sufficient understanding". The Bill provides that any question arising as to whether a child is of sufficient understanding should be determined by the tribunal with a right of appeal to the High Court. However—and here is my difficulty—if it is desirable that the child should be involved in the process but the LEA considers that the child is not of sufficient understanding, then the LEA will not serve the notices on the child. But if the child never receives the notices, how is the tribunal at the next stage to be asked to determine the question of whether the child is of sufficient understanding? Unless I am confused, that is a loophole and it worries me.

The noble Lord, Lord Campbell, is rightly concerned that the child's interests may not be properly represented by its parents. But that could be the case whether or not the child is of sufficient understanding. Surely the child should receive notices in any event. The child's interest can then be represented by a friend or professional person who is in sympathy with the needs of the child.

In the light of those concerns, would it be possible for the Government to take responsibility for ensuring that the principle of the proposals put forward by the noble Lord, Lord Campbell, is upheld? I hope that the Government will make a statement informing the House that they will bring forward amendments which will close this loophole in the law and ensure that the child's rights are protected.

I therefore urge noble Lords to support the principle underlying the concern expressed by the noble Lord, Lord Campbell. Many parents of children with special educational needs are very reluctant to discuss those needs. We should ensure that such children have the right to representation, and that representation will be sensitive to the mobility and/or communication difficulties relevant to each child It would be most unfortunate if the involvement of such children in tribunals merely underlines further the particular special needs that they have and cannot manage to surmount.

Surely we need to recognise the integrity of all children and provide the means whereby those who are disadvantaged still have access to the means of support. I trust that, if my fears are unfounded, other speakers or the noble Lord, Lord Campbell, will help me. However, I want to make very clear that I strongly support the whole thrust of the Bill.

7.58 p.m.

Baroness Darcy (de Knayth)

My Lords, I welcome this Bill, so comprehensively introduced by the noble Lord, Lord Campbell of Alloway. The noble Lord, who has long been a tenacious defender of the rights of children with special educational needs, made a compelling case for the need to rectify certain problems that were not foreseen during the passage of the 1993 (now 1996) Act. As he said today and in the debate on 29th October, it was accepted at the time that, if problems arose in the course of implementation remedial measures would be introduced in subsequent legislation".—[Official Report, 29/10/96; col. 253.] The noble Lord speaks from first-hand and close contact with others involved daily in this area. I have no direct experience and I therefore consulted the Independent Panel for Special Education Advice (IPSEA). Here I should declare an interest because I am a director of IPSEA. It is not a paid position and I am not involved in any practical sense. IPSEA is a charity which provides telephone advice to parents, representation at the Special Needs Tribunal and second opinions from professionals, who are also prepared to be witnesses for parents at tribunal hearings. All these services are free. IPSEA therefore has probably more experience than anyone in dealing with these matters. It has a great deal of countrywide, direct, daily experience of the working of the Act and of any problems which may come to light.

I should like to concentrate on two points: first, that legal aid is not available for challenging the decisions of the tribunal; and, secondly, the fact that LEAs can, and do, discontinue special educational provision before the tribunal meets to consider the parents' appeal. I shall not go into the wider question of the rights of the child with special educational needs because I do not feel competent to speak on that. It seems to go very wide indeed. I very much associate myself with the remarks of the right reverend Prelate the Bishop of Lichfield.

IPSEA warmly welcomes the two points that I have mentioned which the noble Lord's Bill deals with. Indeed, when it submitted both written and oral evidence to the House of Commons Education Select Committee in January this year, one of its main concerns was about the legal aid barrier to challenging a tribunal decision. As the noble Lord, Lord Campbell of Alloway, stated so very clearly both today and on the 29th October (at col. 254 of Hansard) all children other than those with special educational needs can proceed to judicial review through their next friend with full benefit of legal aid, irrespective of the financial circumstances of their parents or their next friend. The sole exception to this rule in child-related matters is an appeal to this tribunal. Only a child with special educational needs who comes from a very poor family which would qualify for legal aid or from a rich family which could afford the considerable cost of High Court action will be able to challenge the tribunal's judgment on a point of law. This will not only debar most children with special needs from pursuing an appeal to the High Court, however good their cause, but it will also have a wider spin-off effect because it will block the development of case law. This was something which concerned IPSEA. I quote from paragraph 7 of its submission to the Select Committee: With Legal Aid unavailable to children, IPSEA is concerned that the full advantage of Part III [now part IV] of the Education Act will be lost. The Act is likely to require interpretation from case law, particularly in the next few years, to clarify the law both for parents and Local Education Authorities. Certainly, our experience of Tribunal judgments, although in the main positive, has revealed ambiguities and inconsistencies which call for guidance from the courts. It makes economic sense to have these matters brought to and resolved by the court, rather than perpetuate tribunal appeals arising from continuing ambiguity". IPSEA asked the Select Committee to examine the issue carefully and to recommend to the Government that the law be changed.

This situation is surely something that must be put right. It is clearly the child who will benefit from a successful appeal to the High Court and who stands to lose if the appeal cannot be made. In this sense it is clearly the child's appeal, notwithstanding the fact that the parent is the party, and it is quite illogical that the child cannot be entitled to legal aid. I understand that IPSEA suggested various ways of resolving this dilemma. The noble Lord, Lord Campbell of Alloway, has proposed one way to resolve it. I look forward to hearing the comments of the Minister on the noble Lord's solution.

I should like to give a very enthusiastic welcome to Clause 3, which ensures that the statement will remain effective until the appeal is finally disposed of. In its submission to the Select Committee, IPSEA asked the committee to recommend an immediate change in the law. It felt that this situation was not something that Parliament had intended to create and that the disruption it would cause to a child's education had not been foreseen. At the moment a child may be, and quite often is, removed from the named school and indeed may be without a school place altogether until an appeal has been heard, which may not be for five to six months. The interesting thing is that the statistics in the tribunal's annual report show that it is in precisely this type of decision—namely, on needs and provision, on Parts 2 and 3 of the statement—that the tribunal upholds challenges from parents in 78 per cent. of the appeals. Therefore the education of the children in 78 per cent. of cases has been needlessly and pointlessly disrupted for about six months. Clause 3 is therefore most welcome. Furthermore, it would not impose any extra administrative burden on local authorities. An authority would simply have to inform a parent six months in advance that it thinks a child will no longer need special educational provision and that the statement will therefore not need to be maintained.

I do not know what the Minister will say. I hope that he will be enthusiastic, at least on the two aspects that I have dealt with. He may disagree with some of the detail, but will he say whether he agrees that, in particular, the removal of the legal-aid barrier and the protection of the statement until the tribunal's decision is made are much needed improvements which address matters that need to be put right? I very much hope he will respond positively. I hope your Lordships will give the Bill a Second Reading so that we may iron out any problems when it comes to Committee.

8.6 p.m.

Lord Addington

My Lords, the noble Lord, Lord Campbell of Alloway, is something of a champion in the area of helping children with special needs. Indeed, when the Education Act 1993 was going through Parliament, he was one of the major players in trying to obtain the provisions for a code of practice and representation rights. One might say that he was the bit to the drill for which the rest of us provided the power; he was the cutting edge.

If the noble Lord missed something, it makes me feel slightly better about myself because I have certainly missed many bits of legal jargon. If the noble Lord can occasionally miss something, I feel a little better.

I do not think anybody will find ground for disagreement on the main thrust of this Bill, which is that the child himself has rights as an independent unit, not merely as an adjunct to the parents. This is fundamental, and the noble Lord put it very clearly. This is the important point.

With regard to drafting, etc., I shall continue in humble vein. The right reverend Prelate spotted a loophole rather more accurately than I could have done, although I think I was able to follow what he said. I hope that the Minister will agree with me that the words do not matter, it is the aim of the Bill that is important. We must ensure that children have the support given by this Bill at all times and that they have it in their own right.

The main criticism that I have heard about this Bill from other organisations is that they believe it may lead to more legal procedures. The Minister nods his head—he usually shakes it, but he is nodding it now. We must try to address this point. The tribunal decides whether a child has sufficient understanding. I suggest that we should come up with a working definition of "a child". We are talking of a child here as someone who is under 19. I would suggest that a young person under the age of 19 may well have a very good idea about certain educational procedures. I further suggest that, if the educational procedures are inappropriate, or if the young person feels that they are inappropriate, they will not work, anyway. The child's rights are centrally important here.

Surely the Government can come up with a definition which will make clear who is included within the definition, thus excluding a considerable area for potential disagreement and legal time. If it is removed, I hope that the whole of this House will agree that the argument is incontrovertible. We have a major line of argument that a person should be consulted and has rights in his own capacity. If that is taken on board, and surely we have much common ground here, there must be a way forward. Even if it is not stated in exact terms in the Bill, there must be grounds for some step forward. We are talking only about bringing in the person who is directly affected by the process into that process. Surely, that is incontrovertible.

8.10 p.m.

Lord Morris of Castle Morris

My Lords, the House will be grateful to the noble Lord, Lord Campbell of Alloway, for bringing forward and explaining the Bill and permitting us to consider the needs of a very important sector of our society—children with special educational needs—whose redoubtable champion he has long been, to the admiration of the whole House.

This is a Private Member's Bill and, as is customary, my party takes no view on it. Therefore, I speak personally and not representatively.

The Bill confers rights on children with special educational needs and changes the provision made for appeals to the Special Educational Needs Tribunal and appeals from that tribunal to the High Court. I should like to deal with those proposals in reverse order, after making one preliminary point which I feel is important.

The Bill deals with rights and with process. It does not and could not deal with resources. Yet, to my mind, the question of resource allocation is of first importance in daily practice. Those whom I have been able to consult in the teaching profession assure me that their most pressing problem is—to use the vulgar jargon—getting a child "statemented". I deplore the verbalisation of a perfectly serviceable noun, but I take the point. Teachers regularly find that a child has special needs and it is obvious what those needs are. That may be (and often is) corroborated by a doctor or psychologist and a request is formally submitted to the local education authority under the 1993 Act, now consolidated in 1996.

However, the law has enacted that so soon as a statement of special needs is issued in respect of any child the local authority is responsible for providing the money to implement and maintain it. I need hardly remind your Lordships that local education authorities are not flush with cash; and they have pressing problems. Schools are crumbling, with a £3 million backlog in repairs; one in 12 children leaves school with no qualifications at all; and a third of all primary school children are in classes of over 30. Is it any wonder that LEAs tend to look carefully at all requests for SEN statements and sometimes take longer than one would like to make decisions when each decision is an ineluctable, unalterable and legally enforceable spending commitment? Surely, the most urgent need is for resources to be made available to speed the decision process and to permit necessary statements to be issued and implemented.

The 1993 Act does, however, permit an appeal. It is that process with which the Bill of the noble Lord, Lord Campbell, is concerned. Clause 4 allows a solicitor to be present at tribunal hearings when the child is represented by a barrister and it requires tribunal decisions to be given in full (Clause 4 (2)). It is a matter of balancing appropriate legal representation against what is considered to be a desirable informality. The president of the tribunal, in the interests of keeping tribunals small and informal, has said that he will exercise his discretion under the regulations, so that the representation on both sides must be limited to two. Thus, if the parent is one person, that leaves only one place for a lawyer, leaving banisters aggrieved that they cannot be accompanied by solicitors. Clause 4(2) is widely felt by the educational community to be a request to get more paperwork out of the tribunal with which to form an appeal.

The SEN Tribunal was established with all-party support to resolve disputes about the special educational provision for children. On the whole, it seems to have succeeded, despite enormous difficulties. The president, Mr. Trevor Aldridge QC, and his staff have worked extremely hard and well. Views of local education authorities about the effectiveness of the tribunal are sometimes related to the fortunes of the LEA before the tribunal. Anecdotal evidence suggests that tribunal decisions have tended to put up costs and the local authority associations are surveying their member authorities on that issue at present.

Concerns have been expressed that the effect of tribunal decisions has favoured children with certain disabilities over others. A difficult issue is that many parents (or voluntary bodies representing the interests of the disability) are paying for legal representation, which on the whole means that the LEA has to reply in kind. The intention of both central and local government on its establishment was that it would be—in the jargon phrase—a "lawyer-free zone". It seems that current practice pushes up the costs. Perhaps I may remind your Lordships of what I began by saying. If tribunal costs go up, LEAs have less money to issue statements of special educational need; borderlines are moved as resources go down and children have to wait longer; and consequently they suffer increased deprivation. Justice for one means injustice for another. There are no easy answers.

Clause 3 deals with the special case where a local education authority proposes to amend or stop maintaining a statement. It proposes that the statement should remain in place until after the appeal process has been exhausted. That seems to me in principle a very necessary improvement to the present law and it is meet, right and our bounden duty that we should support it. Not all LEA decisions are made in heaven and Clause 3 would enforce a very proper discipline.

Clause 2 requires the tribunals and the courts to decide whether or not a child is "of sufficient understanding". I am not a lawyer. I am a literary critic, writer, teacher and poet, and the way in which lawyers use language is a mystery to me and always will be. But I am seriously concerned that this proposal might open up a whole new field of possibilities for lawyers to dispute in court how to interpret "of sufficient understanding". That again would increase the costs of any action and divert money from the primary purpose of providing appropriate teaching for SEN children. I realise that to define "sufficient understanding" is as difficult for a lawyer as to define "combat knife". But I am sure that, if the noble Lord could attempt a definition, it would greatly improve the Bill's chances of acceptance and greatly reduce its cost.

Clause 1 is, of course, the heart of the matter. It proposes the obviously laudable idea that the views of the child should be taken fully into account in any decision made about that child. But again, I confess that I am worried about some of the implications. Although giving explicit rights to children was not considered with the passage of the Education Act 1993, I understand that it has always been possible for children to attend appeal hearings at the tribunal. Children can give their own views and answer questions or make a written statement. My worry is that most of the children are likely to be under 11, with learning difficulties, and they are unlikely to have views very different from their parents. Giving children a key role in making an appeal, rather than their parents, would push children to the forefront of the appeal system, which, given that these children are often some of the most vulnerable members of our society, may have unfortunate consequences. Is it not possible, indeed likely, that such a change in procedure might do more harm than good?

At a deeper level, I am concerned about the whole question of children's rights. I accept that there can be no such thing as animal rights because there can be no rights without concomitant duties and animals cannot have duties. But children can have duties as they develop. So I argue that they must have developing rights. I think we are all agreed about that on all sides of your Lordships' House. I do not always agree with Bishop Bill Westwood, formerly of Peterborough, and I miss him in his place. I consider him dangerously unsound on the liturgy; but I listened to him on "Thought for the Day" on Radio 4 last week, and I was impressed by what he said: It's not a matter of children's rights, it's a matter of us having responsibilities towards children, whether as parents, or friends, or teachers, or simply as fellow citizens of a decent country". That last phrase struck home to me, even just before the weather forecast.

The Bill of the noble Lord, Lord Campbell, at its very heart, seeks to protect and empower some of the most vulnerable people in our society, and in that aim I support it entirely. I am not sure, however, that in its present form it wholly succeeds in that aim, and I hope that he will feel able to take away the suggestions that I and others make today and reflect upon them and, perhaps with the help of people in the established SEN organisations (I think of institutions like the Royal National Institute for the Blind, for example) seek answers to the problems we have posed. I would certainly be profoundly unimpressed by any suggestion that we should depart from our usual decision that this Bill be now read a second time.

8.20 p.m.

Lord Henley

My Lords, on the occasion of this debate there is much with which I can agree with the noble Lord, Lord Morris of Castle Morris, with one brief caveat; that is, that he seemed to imply that there was insufficient expenditure by the LEAs on special educational needs. I remind him that most LEAs, quite rightly—they have a good record in this regard—spend 10 per cent. or so of their schools budget on the additional expenditure required for children with special educational needs over and above what is required for the majority of children. The Government's provision for local authority settlements was a good one last year. We will be announcing it again shortly, following the Budget. Our record speaks for itself. We have made sufficient money available to the LEAs and they have been able to make sufficient money available for special educational needs; though I accept that many would like more—that is ever the case.

I am grateful to my noble friend Lord Campbell for the way in which he explained the objectives of his Bill. The Bill reflects the great interest that my noble friend has shown over the years in special educational needs issues. I discussed these matters with him at a much earlier stage and corresponded with him about them. I therefore know of his commitment in this area.

It will be apparent that the Bill raises some difficult issues. I am grateful for the careful way in which the noble Lord, Lord Morris, dealt with a number of those. In the time available to me I should like to focus on the issues raised by the first clause, though I shall comment briefly on the Bill's other proposals.

This House, far more so than another place—it is always an advertisement for this House—considered very carefully the arrangements relating to SEN and the tribunal in particular during the passage of the Education Act 1993. I should like to remind the House of two points raised during our discussions then because I believe they remain pertinent.

During the Committee stage my noble friend Lady Blatch said that the tribunal should provide a simple and straightforward means of resolving disputes between parents and local authorities. The noble Lord, Lord Ponsonby, talked of the dangers of turning the tribunal into a highly formal lawyer-dominated process. He said he was sure that this House would not like that to happen. I feel no less sure that that remains the view of most Members of this House. However, the Bill could undermine both those objectives.

Perhaps I can start by offering a compressed sketch of the SEN procedures. Following the SEN Code of Practice which this House endorsed, schools respond in a staged way to a child's special educational needs, monitoring progress and providing additional help if what is offered so far has not proved successful. For that small proportion of children for whom a mainstream school cannot by itself provide, the school or parents may ask the LEA to carry out a statutory assessment. As we know, that is a thorough process involving educational psychologists, the school and often medical and social services, and the parents and the children themselves.

In most cases such an assessment leads to a statement of special educational needs. That will be drawn up in draft by the LEA and sent to the parents for comment. There is therefore every opportunity for input from the parents and the child. Only where parents are dissatisfied with aspects of that process, or of the eventual statement, does the question of appeal to the SEN tribunal arise. The tribunal is intended to be a last resort and a final arbiter. That is why the tribunal that hears each appeal comprises two members with extensive experience in special educational needs, with a legally qualified chairman. Appeal beyond the tribunal is only to the High Court, and then only on a point of law. So far, since the Act and the code of practice, of the 2,000 parents who have appealed to the tribunal, only 54 have subsequently appealed to the High Court against a tribunal decision. The High Court has upheld the parents' appeal in only four cases.

In Clause 1 the Bill, at over 20 separate points in the existing legislation, would allow a child if of sufficient understanding—I shall return to those words—to be a party in their own right as well as their parents. I believe that that one feature of the Bill alone is enough to render it inoperable. For example, what if a parent and a child want different things? The parent may believe that one school is best able to cater for their child and should be named in the statement, while the child wants another. Who takes precedence? At present the tribunal focuses on the child's needs. If a child disagrees with his parents, the LEA will bring that out in its evidence. The tribunal already makes every effort to establish the child's view. I cannot believe that my noble friend wants to see children with special educational needs pursuing cases in the teeth of opposition from their parents.

In any case, even to operate those provisions involves identifying whether a child is of "sufficient understanding"—Clause 2. The questions of the right reverend Prelate reveal the impracticality at the core of the Bill and I do not believe that those are issues that can necessarily be resolved by adept drafting. No doubt my noble friend, with his expertise, will attempt such a process. When looking at "sufficient understanding" we must ask how a tribunal is to determine that. Even if we could define the phrase in practical terms, I do not believe that anyone in this House can say what proportion of children with special educational needs sufficiently severe to require a statutory assessment would be held to have "sufficient understanding".

That core provision of the Bill is impracticable. Even if it were not, it would at once be to the detriment of the children concerned by putting them, as the noble Lord, Lord Morris, said, in the spotlight where they may not want to be and—dare I say it?—if it is not to the detriment of the children, those are arguments that could be to the benefit of the legal profession. I cannot accept that increasing the legal stakes in matters of complex and sensitive educational judgments that arise in virtually every SEN case would necessarily benefit the children concerned. Nor—I make this quite clear—can I overlook the fact that the costs would escalate all round.

One other damaging effect of the Bill arises from the fact that, in order for a child to qualify for legal aid in an appeal to the High Court, he would have to be the original appellant to the tribunal. Even if we assume that the 90 per cent. or so of parents not legally represented when they appeal to the SEN tribunal would be aware of that, it implies that the child may be pushed—a point made by the noble Lord, Lord Morris—perhaps undesirably into the forefront of the case. Even then, I doubt whether it would achieve my noble friend's objectives. It would be a route open only to children of "sufficient understanding".

I may say in passing that keeping legal intervention in the workings of the tribunal to a minimum is decisive for me in considering the Bill's proposals to allow a solicitor as well as a barrister to attend hearings. At present, as I suggested earlier, only around 11 per cent. of parents are legally represented at hearings. I wholly support the president of the tribunal—Mr. Trevor Aldridge—in his wish to keep both hearings as informal as possible. He has, for that reason, so far decided not generally to allow "dual legal representation", though he has permitted it exceptionally. He has undertaken however to review that issue by the end of the year. I certainly would not wish to press further than this without seeing the conclusions of the review which he will be conducting at the end of the year.

The Bill, in Clause 4, would require tribunals to provide reasons for their decisions in full rather than in summary form. Quite apart from the question whether it is appropriate to amend through primary legislation a provision contained in secondary legislation, this falls also at the hurdle of legal bureaucracy. A summary decision is typically three or so pages long. I do not think parents would necessarily welcome the delays inevitable if full written decisions had to be provided—perhaps up to 25 pages in length. Nor would parents necessarily welcome the technical detail entailed. Indeed, Mr. Justice Latham found, in his decision of July of last year in S v. the Special Educational Needs Tribunal and the City of Westminster that the decision of the tribunal in summary form was, an admirable example of how matters should be dealt with". I should mention the two remaining provisions of the Bill, both of which are unnecessary. One, Clause 3(1), attempts to provide an extra right of appeal when, after an annual review of a statement, the LEA decides not to amend the statement. In effect, a more powerful version of the same right is already in place. A parent can usually seek a reassessment of his child and can appeal to the tribunal if the LEA refuses the request. Since a reassessment is more onerous for the LEA than amending a statement, authorities are already likely to be responsive to parents in those circumstances.

The second remaining point, Clause 3(2), which concerned the noble Baroness, Lady Darcy (de Knayth), relates to the continuation of a statement where a parent appeals to the tribunal against an LEA's decision to cease to maintain the statement. There is, in some cases, a genuine difficulty here. But I believe it is one which is much more likely to be resolved by flexible local action than by hard and fast statutory rules. For that reason the Department for Education and Employment has recently issued guidance to LEAs. Until we have more evidence of the scale of any potential problems, I do not believe there is a case for change, particularly statutory change, at this level.

It has always been the intention of the Government—and I believe this House—to make the SEN tribunal as user-friendly as possible. It is a tribute to the president and his staff that they have largely been successful in so doing. This Bill would very much undermine and endanger that achievement. Having said that, I shall not, in the usual manner, oppose the Second Reading of the Bill, but I have to say to my noble friend that Her Majesty's Government cannot give their support to it.

8.33 p.m.

Lord Campbell of Alloway

My Lords, I am grateful to all noble Lords who have spoken. Nothing that my noble friend Lord Henley said causes me the slightest surprise. It is a firm attitude of government that has been represented throughout all our discussions—courteously entertained but stonewalled. It is for that reason that I introduced the Bill. Broadly speaking, in principle, it appears to commend itself to all sides of the House. I am grateful to noble Lords for their support.

Clearly, grudgingly, my noble friend Lord Henley said that by convention the Government would not oppose the Bill. If the convention were not there, they would have opposed it tooth and nail. But we have to fight on for what we believe in and take issue with the Government, who I, in other ways, support. I am grateful for the suggestion made by the right reverend Prelate which I shall take up. It was supported by the noble Lord, Lord Addington, and it was supported to some degree in a different form—we all have our own views and our own ways—by the noble Lord, Lord Morris of Castle Morris. I agree that we should probably amend so that the child should have notice in any event. If the right reverend Prelate were to table an amendment, I would immediately be disposed to accept it. Other noble Lords may wish to table other amendments. That is something which we can consider at the Committee stage on 11th December. It is difficult to take it further today other than to express my gratitude for the suggestions that have been made.

I want to make one thing perfectly clear. I strongly resent that snide remark by my noble friend Lord Henley suggesting that the Bill might be of no benefit to the child but of some benefit to the profession of which I am a member. I do not think it very amusing. As he was or is a member of that profession, I think it comes ill from him in any event. There is none of that about this Bill. The Bill is presented as a matter of principle and not to "fat cat" the legal profession.

Lord Henley

My Lords, I totally withdraw the remark if my noble friend took it in that sense. What I was trying to get over was that I believed that the Bill would not be of benefit to the children because, as we made clear earlier, this is an area which one wants to keep as far as possible lawyer-free. That was the original intention behind the tribunals.

Lord Campbell of Alloway

My Lords, I hear what my noble friend says. I am grateful to him. I do not quite understand what it means.

I want to make one other point. The suggestion that there is some idea that the Bill would run against the user-friendly concept of the tribunal or would create a system which was not informal is nonsense. That concept is consistently held by the department—I cannot go too far because my conversations with the department were confidential—but perhaps I may put it this way. Nothing that my noble friend has said on the Floor of the House tonight surprises me. I maintain that there is nothing in the Bill which runs counter to the concept that we all have—that this must be user-friendly and informal. All we want is a measure of means of obtaining justice.

The question about the position of the child at this hour is too important to deal with. All your Lordships are concerned that the position of the child should be restored to what it was before this regime was introduced and put on the same basis—I am putting it very simply—as with all other children. With that, if your Lordships will allow, I commend the Bill to the House.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

House adjourned at twenty-two minutes before nine o'clock.