HL Deb 20 January 1997 vol 577 cc447-53

7.25 p.m.

Read a third time.

Lord Campbell of Alloway

My Lords, I beg to move that the Bill do now pass.

Moved, That the Bill do now pass.—(Lord Campbell of Alloway.)

The Lord Bishop of Lincoln

My Lords, perhaps I may express my support for the noble Lord's Bill. It seems that the intention is wholly worthy, but we need to be assured that pupils who, for various reasons, may have some form of disability are not disadvantaged in any way.

There are some children whose parents and guardians, no doubt for a variety of reasons, do not act on behalf of their children and ensure that they receive their full legal entitlement. There are no obvious problems about enabling those children who can understand the proceedings to represent themselves when parents or guardians do not do so. What we ought to be concerned with is the moral issue of entitlement; how we may enable children to receive what is legally and morally theirs.

Clearly, no one wishes to create a situation in which children are set against their parents or guardians. But, equally, it is important to acknowledge that children have an entitlement for their cause to be pursued. We need to recognise that children who do not necessarily have all the gifts of an active intellectual life can and do have real insights into life itself. They know when they are patronised, when they are not recognised or when they are summarily dismissed.

It is deeply important that the value of each child or pupil is recognised, whether it is at statementing or at a tribunal. We do not fight for them or on their behalf, but we do fight with them, ensuring that they learn and grow. Therefore, we need to ensure that the needs of such children are met, that we have sufficient trained teachers to teach them, and that we have a system which provides them with specialist help when they need it. We need their insight and we need to recognise and rejoice in their contribution and not prejudge it.

We may need also to provide more effective support so that parents feel confident in taking up issues on behalf of their children. Many parents fear tribunals and hearings, and if a special child then becomes a parent he will need help to take up the rights of his children. Many highly articulate and educated parents have trouble filling in forms and dealing with procedures. Perhaps I may make a plea that the Government consider how best to support parents of such children in order to ensure that they receive what is their due.

Lord Addington

My Lords, the Bill addresses a specific point—it is the fact that a child has individual rights and is not merely an extension of the parents. The Government did not intend that to occur, but children's rights stopped appearing in legislation. The noble Lord's Bill changes that situation and brings back children's rights for all to see. We had arguments about whether certain children should be included and so forth. The noble Lord has ended up, under a certain degree of pressure, going for an answer which is probably better because it is simpler—namely, that all children should have their rights and views represented when it comes to dealing with their own education. Surely, that is something which should be dealt with, if not in this Bill, at least in legislation very soon. I hope that it is in this Bill.

7.30 p.m.

Lord Morris of Castle Morris

My Lords, in conformity with the conventions of your Lordships' House, I must begin by reciting my mantra and saying that, as this is a Private Member's Bill, my party takes a neutral stance on it and I speak for myself alone and not as representing the Labour Party. That is a pity, since I feel like the Irishman passing a pub outside which a group of drunks were deciding a matter of dispute between them in the traditional manner. Tapping one of them on the shoulder, he inquired nostalgically, "Is this a private fight or can anyone join in?"

The fight, it seems to me, is between the noble Lord, Lord Campbell of Alloway, and his noble friends in the Government rather than, in the usual way, across the Floor of the House. We are indebted to the noble Lord, Lord Campbell of Alloway, for introducing and persisting with this Bill because he has, in my view, improved it substantially since Second Reading, in particular by removing the phrase "if of sufficient understanding", which several of us pointed out to him was a cause of offence. Yet the objective of the Bill remains the same—namely, to establish conditions in which it will be possible for children to be given a full and independent voice in the appeal proceedings. There are those who believe that the noble Lord's Bill will not have this effect; I suspect that the noble Lord the Minister would number himself among them.

The Bill is designed to take away appeals from the SEN Tribunal and place them far more in front of the High Court. While not wishing to suggest that lawyers may have a financial interest in having cases before the High Court rather than the tribunal—and again it is to the credit of the noble Lord, Lord Campbell of Alloway, that he has scotched that rumour remarkably effectively and well as the Bill has passed through your Lordships' House—there are those who argue that it is unhelpful to have a body, the High Court, which was not designed to hear SEN appeal cases, taking away appeals from the very body, the SEN Tribunal, which was specifically designed for that purpose. If the noble Lord, Lord Campbell, wished to give children additional appeal rights, they argue, he should have started at the SEN Tribunal and not at the High Court. He will doubtless wish to deal with that issue when he speaks.

Yet even after the Bill's Committee stage there continues to be much concern by local authorities about the operation of the tribunal. It may be that the noble Lord's attempt to move things to another plane would assist the tribunal rather than hinder it. In particular, it is becoming susceptible to organised campaigning by certain pressure groups.

I have received an unsolicited letter from Dudley local education authority which makes this case well. An SEN Tribunal case is quoted in which a boy aged seven who suffers from epilepsy, which is well controlled by medication, has some mild learning and behavioural difficulties. On admission to primary school at the age of five, additional welfare support was provided to the school for three pupils while statutory assessments were completed following school referral. That was in February 1994.

The assessment was completed and the note-in-lieu issued in April 1995. Informal support was then removed from the school. The authority considered that the mainstream school could meet the pupil's needs from its normal resources. There was therefore an appeal to the SEN Tribunal in June 1995. Time goes on like an ever-rolling stream. In November 1995 the tribunal ordered the case to be remitted to the LEA to consider whether to determine special educational provision.

In December 1995 the LEA issued a notice to reassess the pupil's needs. This was completed in February 1996, resulting again in a note-in-lieu indicating that the pupil was making satisfactory progress in the basic skills and that his epilepsy was well controlled by medication.

That would have seemed to be the end of it; but no, there was appeal number two to the SEN Tribunal in June 1996 and the tribunal ordered that the LEA should make and maintain a statement based on the premise that the child's performance was erratic, that the level of support provided by the school would be reduced on transfer into Key Stage 2 and that he required daily support.

The LEA issued a statement providing one hour per day welfare support, thus complying with the tribunal order. This level of support was well in excess of the existing support for the pupil of 2 × 30 minutes group withdrawal and 2 × 30 minutes classroom support.

That would have seemed to be the end of the matter; but no, there was appeal number three to the SEN Tribunal in November 1996. This appeal is based on the parents' view that, as the school has reduced its internal support to the LEA, the LEA's provision of one hour per day is not sufficient. In the words of the press, the case proceeds.

The increase in litigiousness is alarming. I note the concern expressed (judiciously) in the Annual Report of the SEN Tribunal for 1995-96. I quote from the report's introduction: The year 1995-96 was the Tribunal's first full year of work, after the gradual build-up during the previous year. At the start of the second year, immediately after the school summer holidays, there was an unexpectedly heavy influx of new appeals. For a time, an already over-stretched secretariat was unable to keep pace, and there were consequent delays in processing the cases. However, the intake of work slackened, and it was possible to recruit and train more staff, some of whom are now working in Darlington. All the same, accommodation problems meant that there was a continuing need to ask staff to work overtime. Towards the end of the year, we were receiving some 35 new cases each week, a figure considerably above the original estimate of the Tribunal's workload. It also became apparent during the year that more chairmen (sic) and members were needed to adjudicate the volume of appeals we were receiving. Further appointments were made, although only late in the year. It is for the noble Lord, Lord Campbell of Alloway, to convince his noble, honourable and right honourable friends that his Bill will alleviate that condition rather than confound it and lead to even more work for the tribunal year by year, and for the High Court as well, which could act to the detriment of the child and family or in their favour. It is for the noble Lord, Lord Campbell of Alloway, to convince the Government of that.

Meanwhile I am happy to continue to support the thrust of his Bill and I am very willing to be convinced that it would achieve its objective without increasing these complexities and delays. I fear that his noble friend the Minister may be harder to persuade.

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

My Lords, perhaps I may start by reassuring the House and the noble Lord, Lord Morris of Castle Morris, that this Bill does not represent a fight, whether public or private, between myself and the noble Lord opposite or between my noble friend, myself and the Government. I very much commend the manner in which my noble friend has moved this Bill and taken it through both Houses. We have had some very useful discussions, even if we have not necessarily always agreed.

I have already stated the Government's general opposition to the thrust of the Bill. While the principles behind my noble friend's Bill have much to commend them, these principles are already enshrined in the appropriate legislation and in the code of practice on the identification and assessment of special educational needs. Those who are involved in child assessment and provision and those involved in an appeal about them to the SEN Tribunal are already exhorted to ensure that the child's views are known and represented. I can reassure the right reverend Prelate that the child's needs are there represented and that the local authority is actively encouraged to listen to the views of the child. The tribunal itself is concerned solely—as is right—with the child's needs, and that is what it is established for.

Children with special educational needs are not—as I think has been suggested—disadvantaged by the current system. They are the only children to have their own tribunal which, unlike other forms of address such as local appeal tribunals, the Secretary of State or the courts, is expert in the matters of special educational needs. I believe that this Bill attacks the principle that so far as is possible the tribunal should be the final arbiter in these matters by at least implicitly opening up the prospect of much further subsequent challenge to the courts.

I reassure the noble Lord, Lord Morris of Castle Morris, that the SEN Tribunal and its members and chairman (sic)—I hope I may put it like that to the noble Lord; I know how politically correct he is—are independent. The noble Lord knows that they are independent. I know the noble Lord knows well the work that they do and has great admiration for it. Many of them have experience of working in LEAs. The decisions of the tribunal are, I believe, in the interests of each child before it. I do not think it is correct—I suspect I misunderstood the noble Lord if I understood him to say this—to say that it is susceptible to lobbying from any quarter. I am sure the noble Lord would not wish that impression to be gained.

Lord Morris of Castle Morris

My Lords, may I withdraw the word "susceptible" for fear of misinterpretation and substitute for it another word which will come to me in a moment, and say it is subject to pressure from outside?

Lord Henley

My Lords, I am only sorry that we do not have the benefit of the expert advice of the noble Lord, Lord Quirk, who might be able to advise us on the appropriate use of language. I take the point of what the noble Lord has to say. The various words he has used can remain on the record.

I hope I may illustrate what I believe is the success of the tribunal in meeting children's needs. It has, since September 1994, registered something in the region of 3,500 appeals. Only 72 of its decisions have been appealed to the High Court on a point of law and in only 10 of those 72 were the tribunal's decisions remitted for rehearing or conceded. If that does not demonstrate that the tribunal is doing a good job, I do not know what does. I believe—I say this with some care, and I do not wish in any way to offend my noble friend—this Bill would have the danger of making the tribunal more litigious and more formal. I and many others, both inside and outside government, do not want that to happen.

I address one further matter that has not been raised this evening, but I think would be of interest to my noble friend, relating to the question of legal representation at hearings. My noble friend will no doubt be aware of the president of the tribunal's statement on 16th December about representation at tribunal hearings, which is directly relevant to Clause 4(1) of this Bill. I said at Second Reading I would not want to press further on this without knowing the outcome of the president's consultation. The president has now written to me in the department about the conclusions arising from his consultation. He confirms that the regulations are clear in their intention that the parties should be represented in the main by one person. He does not want to compromise the informal approach of tribunals by giving legally represented parties the right to have both counsel and a solicitor, but he will consider the merits of each case.

Alternatively, where parents would like their solicitor to attend a hearing—for example, where they have established a good relationship with him and do not know counsel—he may attend a hearing as a befriender. That seems to me to be a perfectly good solution and strikes the right balance between maintaining informality at hearings while allowing additional support for parents. I hope my noble friend does not mind my putting that message from the president of the tribunal on the record because I think it is an important matter of concern to the House. Having repeated my views on the Bill, I say to my noble friend that I, of course, understand very much the motives behind his moving the Bill, but I have to say yet again that the Government cannot offer their support to it.

7.45 p.m.

Lord Campbell of Alloway

My Lords, I must not take too much time. One ought to pay tribute to the procedures of the House. They enable a Private Member's Bill to be debated fully and with expedition. However, if this Bill be but a means to an end, so be it. Already, as the noble Lord, Lord Morris of Castle Morris, has mentioned, it has had some beneficial effect in certain quarters. Some day, in some form, the substance of this Bill will reach the statute book; of that, there is no question.

I thank the right reverend Prelate the Bishop of Lincoln for coming to speak on the moral entitlement, the core principle of this Bill, and the reason why it shall reach the statute book, and to speak for the Church, which is of crucial and cardinal importance. So your Lordships have not toiled in vain. Some Cabinet decision will have to be taken some time under some government which overrides the resistance of Sanctuary Buildings whence come the instructions of my noble friend the Minister.

I thank my noble friend the Minister for what he had to say. I do not agree with any of it, as he knows. I understand that he has to restate the Government position. I am not at all happy about the way the tribunal is working. I do not want to enter into an argument— for the sake of the record, a counter argument—at this time of night on this occasion; but I do not accept that all is as well as my noble friend the Minister would suggest. However, I thank him for the good humour and patience with which he has conducted this debate. I thank the noble Lord, Lord Addington, who spoke tonight and who has spoken cogently throughout this Bill on behalf of the Liberal Party. I also thank my noble friend Lady Darcy (de Knayth) who has spoken from the Cross Benches.

The interest in this Bill is such that it has gone far beyond this House. It is interesting that the majority of noble Lords who have spoken on this Bill are hereditary Peers. In particular the speech of the right reverend Prelate the Bishop of Lichfield and of the noble Lord, Lord Morris of Castle Morris, at Second Reading were veritable beacons of inspiration and enlightenment and are worthy of the attention of any government and of another place at any time. Another place in due course may well wish to know why Dean's Yard and Sanctuary Buildings, so close to one another, are yet so many miles apart. It may wish to know why representations of the right reverend Prelates the Bishop of Lichfield, the Bishop of Ripon and the Bishop of Carlisle and those of Mencap have been rejected out of hand. Another place may wish to know that. It may also wish to know why, in our predominantly Christian, multi-religious society no "theist", atheist or agnostic objection has been raised to this Bill or to the core principle of it.

Although my noble friend would not agree, this Bill, in effect, in all its aspects reflects the consensus of basic sociological moral values. I thank all noble Lords again for all the trouble that they have taken. I commend the Bill to the House.

Bill passed, and sent to the Commons.